THE 



Township and Town Officers' Guide 



A SUMMARY OF THE LAW GOVERNING 



TOWNS AND TOWNSHIPS 



%** 



STATE OF INDIANA 
WITH INSTRUCTIONS AND FORMS 

BY 

FRiNCIS ADKINSON 



V OF COa// 
OPYRlCi/Vj 



CINCINNATI 
BOBEKT CLAEKE & CO 

1877 









Entered according to Act of Congress, in the year 1877, by 

ROBERT CLARKE & CO., 
In the Office of the Librarian of Congress at Washington. 

Stereotyped by Ogden, Campbell & Co., Cincinnati. 



CONTENTS 



CHAPTER I. 
Animals 1 

CHAPTEE II. 
Apprentices 10 

CHAPTER III. 

Assessment of Taxes 18 

Property Exempt from Taxation... 19 

Election of Assessors , 21 

CHAPTER IV. 
Bonds and Oaths * 51 

CHAPTER V. 

Constables 54 

Forms , 59 

CHAPTER VI. 
Elections = 62 

CHAPTER VII. 
Enumeration 76 

CHAPTER VIII. 

ESTRATS AND ARTICLES ADRIFT 81 

CHAPTER IX. 

Fences 91 

(iii) 



IV CONTENTS. 



CHAPTER X. 
Highways 102 

CHAPTER XI. 
Justices of the Peace 117 

CHAPTER XII. 
Poor 120 

CHAPTER XIII. 

Schools 130 

School Lands 153 

School Law Forms 264 

CHAPTER XIV. 
Supervisors 171 

CHAPTER XV. 
Towns 186 

Dissolution of Town Corporations 214 

Construction of Sewers , 220 

Proceedings to Widen Streets and Alleys 225 

Town Associations , 232 

Consolidation of Town with City 243 

CHAPTER XVI. 
Townships 248 

CHAPTER XVII. 

Township Trustees 253 

Forms 260 



PREFACE 



Although but a small part of the legislation of the 
State of Indiana is devoted to township affairs, the 
statutes prescribing the mode of transacting township 
business, as the laws of the State are now published, 
constitute parts of two large and expensive volumes, 
and also of the acts passed at the regular and special 
sessions of the legislature in 1877, published since the 
last revision. 

It is, therefore, necessary for township officers, in 
order to be fully informed of the laws they are re- 
quired to administer, and by which they must be gov- 
erned in the discharge of their official duties, to have 
access to this large body of legislation, and then the 
information desired must be sought for among the 
statutes relating to every other subject. 

It has been my purpose to present in the following 
pages the substance of all the statutes now in force, 
relating to township matters, in the smallest possible 
compass, and so arranged that any of the subjects 
treated may be readily referred to. 

As appropriately belonging to a work of this char- 
acter, a chapter has been added containing the sub- 

(v) 



VI PREFACE. 



stance of all the statutory provisions relating to the 
incorporation and government of towns. 

Forms have been inserted where deemed necessary, 
especially in cases where officers are not required by 
statute to be furnished with blanks to be used by them 
in the performance of official duties. 

References are given to Davis' Revised Statutes of 
1876, and to the Acts of 1877 ; and also to the de- 
cisions of the Supreme Court of the State applicable 
to the subjects presented. 

I am aware that the work will not be found free 
from imperfections, but hope I have succeeded in 
placing within the reach of all the means of becom- 
ing acquainted with certain branches of the law which 
are of practical interest and importance to every citi- 
zen, but which, in all the treatises upon the local law 
of the State heretofore published, have been almost 
wholly overlooked, and that the book will materially 
aid the officers for whom it was intended in the per- 
formance of their duties. 

F. ADKEsTSOK 

Lawrenceburgh, October 24, 1877. 



INDIANA 

TOWNSHIP OFFICERS' GUIDE. 



CHAPTER I. 

ANIMALS. 



What animals may run at large. 1 — It is the duty of the 
board of commissioDers of each county, to direct by an or- 
der entered, on their order book what kinds of animals shall 
be allowed to pasture or run at large upon the uninclosed 
lands or public common within the bounds of any town- 
ship, in their respective counties. The order must name 
the kinds of animals that are permitted to run at large, and 
the age, and also the particular class of such animals, 
whether male or female. Until such order is made, no do- 
mestic animal can lawfully run at large in this state. 

Animals not permitted to run at large may be taken up. — 
When any animal which is not specified as j^ermitted to 
run at large, in such order of the commissioners, shall be 
found running at large, or pasturing on any of the unin- 
closed lands, or public common, of any township in this 
state, any resident of such township may take up and im- 
pound such animal in any public or private pound in the 
township. The animal should be placed in the public 
pound, if there be one in the township ; if not, a private 
inclosure may be used. 

Notice of taking up. — The person taking up and impound- 
ing such animal must give immediate notice, in writing, to 
the owner thereof, if such owner be known to him. The 
notice may be as follows : 

1 1 R. S. 1876, 64; 38 Ind. 557 ; 9 Ind. 397 ; 27 Ind. 96. 



ANIMALS. 



To Otho Lowe : 

Take notice that I have this day taken up a horse be- 
longing to you, and found by me running at large on the 
public common in Lawrenceburgh township, Dearborn 
county, Indiana, said animal not being allowed by law to 
run at large in said township ; and that I have impounded 
said horse in the public pound of said township [or, on my 
farm in said township, as the case may be]. You are re- 
quired to come and pay charges, and take said horse, or I 
will dispose of said animal according to law. 

George Hayes. 

August 10, 187T. 

If immediately upon the delivery of this notice, the owner 
shall proceed to redeem the animal, he may do so by pay- 
ing to the taker up one dollar and fifty cents. 

It is immaterial what expense the taker -up may have 
incurred, or what his services may be in fact worth, the 
statute only permits the sum named to be charged, and the 
taker up can not be compelled to receive less. 

Notice, if the owner is not known. — If the owner be not 
known to the taker-up, he must at once give notice, by 
posting written notices in three of the most public places 
in the township, stating the time of taking up, the age, 
marks, and a full description of the animal, and that the 
Owner thereof is unknown to him, and the place where it 
is impounded. 

Form of Advertisement. 

Notice Is hereby given that the undersigned, on the 10th 
day of June, 1877, took up a black mare described as fol- 
lows, to wit: Said mare is sixteen hands high, has a scar 
on the left shoulder, mane and tail heavy, and both fore 
feet white. 

Said mare was found running at large in Cass township, 
Ohio county, Indiana, contrary to law. Said animal is im- 
pounded in the public pound of said township, at Aber- 



ANIMALS. 



deen [or, at my farm, situated, etc., giving location in the 
township], and the owner of said mare is not known to me. 

Eli S. Eichmond, 
June 10, 1877. 

Oicner may reclaim animal within ten days. — If, at any 
time within ten days after the posting of the notice, any 
person shall appear and claim the animal taken up as his 
property, and prove by his own affidavit, or the affidavit 
of another person, that the animal belongs to him, and 
shall pay the person taking up the same three dollars for 
his trouble and expense of keeping, the taker-up must 
immediately surrender the animal to such owner without 
further compensation, or any other proof of ownership. 

Form of Affidavit of Ownership. 

State of Indiana, Ohio county : 

William McHenry, being duly sworn, on oath says, that 
he is the owner of a black mare \_here describe as in the no- 
tices'], which was taken up and impounded on the 10th day 
of June, 1877, by Eli S. Eichmond, while running at large 
on the public common in Cass township, in said county, 
contrary to law. 

William McHenry. 

Subscribed and sworn to before me the 15th day of June, 
1877. 

Henry Sedam. 

Justice of the Peace. 

If the affidavit be made by another person for the owner, 
the above form can be varied accordingly. 

Taker-up must take care of animal. — The taker-up must 
carefully attend to and provide food for the animal, and if, 
at the expiration of ten days from the date of posting the 
notices, no person shall appear or claim and prove the animal 
to be his property, the taker-up must immediately adver- 



ANIMALS. 



tise it for sale by posting written notices in three of the 
most public places in the township, describing the animal 
and stating that it was taken up as an animal not allowed 
by law to pasture on the public common, and the time and 
place where the same will be sold. At least ten days' 
notice must be given of the time and place of sale. 

Form of Notice of Sale. 

JSTotice is hereby given that the undersigned will, on the 
10th day of July, 1877, at , sell at public auction, to 

the highest bidder, for cash in hand, one black mare [de- 
scribe fully'], taken up by me as an animal not allowed by 
law to pasture on the public common. 

Eli S. Eichmond. 

If the owner do not appear and prove his property, as 
already explained, before the day of sale named in the no- 
tices, the taker-up must proceed to sell the animal at pub- 
lic auction, to the highest bidder, and out of the price 
received he may retain three dollars for his services in 
taking up the animal, and ten cents per day for every day 
he has kept and fed such animal, and the balance of the 
money he must pay over to the count}?- treasurer for the 
benefit of the school fund. The county treasurer is re- 
quired to retain the money in his office for one year from 
the time it was paid in, within which time the owner of 
the animal may prove, to the satisfaction of the auditor 
and treasurer, that the animal sold by the person paying 
the money into the treasury was his property, and receive 
the money less the fees. 

Dogs subject to tax. 1 — Persons keeping or harboring dogs 
are liable to pay a tax of one dollar per year for each male 
dog, and two dollars per year for each female dog, and two 

1 1 R. S. 1876, 69; 27 Ind. 62, 120. 



ANIMALS. 



dollars per year for each dog more than one, if such dogs 
are over the age of six months. 

Township trustee entitled to receive the dog tax. — The 
township trustee of each township is entitled to receive from 
the county treasurer, in March of each year, the amount 
of dog tax paid into the treasury by persons residing in 
his towoship, and such tax shall constitute a fund for the 
payment of damages sustained by the owners of sheep 
killed or maimed by dogs within such township. 

Persons having sheep killed by dogs may be paid. — Any 
person having sheep killed or maimed by dogs, may pre- 
sent a claim to the trustee of his township for damages. 

The claim may be presented in the form of an account 
against the township, stating the number of sheep killed 
and their value, or the number maimed and the amount 
of damage done; and, upon proper proof being made, the 
trustee will be authorized to allow such damages as he 
shall deem just, and may pay the amount he allows out 
of the fund in his hands arising from such tax. 

The trustee, however, can not make any allowance, if the 
person applying has brought an action and prosecuted the 
same to final judgment against the owner of the dog caus- 
ing the damage, nor unless he will make an affidavit that 
he will not bring such action. 

The claim for damages may be as follows : 

Form of Claim for Damages. 

Lawrenceburgh Township of Dearborn County. 

To Omer T. Ludlow, Dr. 

To damage done by the killing of six sheep by dogs 
on the 10th day of September, 1877, in said town- 
ship, worth $2 each $12 00 

To damage done at same time and place by the 

maiming of three sheep by dogs 6 00 

Total damage $18 00 



ANIMALS. 



State of Indiana, Dearborn County. 

Omer T. Ludlow, the claimant above-named, being 
duly sworn, says that he will not prosecute any claim 
for damages sustained by him as set forth in the foregoing 
account against the owner of the dogs causing such dam- 
age. 

Omer T. Ludlow. 

Subscribed and sworn to before me, the 1st day of 
August, 1877. 

Samuel McElfresh, 

Township Trustee. 

The statute is silent as to the mode of proof in such 
case. The trustee must, however, be satisfied of the cor- 
rectness of the claim, and he is the sole judge of the suf- 
ficiency of the proof. He will be justified in allowing and 
paying the claim upon the affidavit of the claimant alone, 
if he believes it to. be true, or he may require other evi- 
dence. 

And the trustee may examine the claimant and his wit- 
nesses, if any are produced, orally, under oath or affirma- 
tion, or he may take their affidavits. 

Owner of dog liable for damages for sheep killed. — The 
owner of sheep killed or injured by dogs is not, however, 
bound to look to the dog tax fund for payment of his dam- 
ages. The act of June 15, 1852, which seems to be in 
force, provides that the owner or harborer of a dog will 
be liable to an action before any court of competent juris- 
diction for the damage that ma}' be sustained by the owner 
of any sheep killed or injured by such dog. 1 

When dogs may be killed. — Any person may at any time 
kill a dog found running, worrying, or injuring sheep, and 
if the owner of any dog which is in the habit of running 
from home and wandering about without the presence of 

^Ind. 72; 1 R. S. 1876, 70. 



ANIMALS. 



its owner, shall neglect or refuse to confine such dog, after 
due notice given to him of such wandering habits, it will 
be lawful for any person to kill such dog, wherever it may 
be found, running about off the premises and away from 
the presence of the owner. It is not necessary that the 
notice be given in writing. 1 

When owner of animals not [table for damage done. — The 
owner of domestic animals, not naturally inclined to com- 
mit Ihischief, such as cows, oxen, and the like, is not liable 
for any injury committed by them to the person or personal 
property of another, unless it can be shown that he pre- 
viously had notice of their mischievous propensity, or that 
the injury resulted from, or was attributable to some ne- 
glect on his part. 2 

This rule of law does not apply to cases where animals 
break through a lawful fence, or where sheep are killed by 
dogs. The statute makes the owner liable in su.ch cases. 

Diseased sheep not allowed to run at large. — In order 
to prevent the spread of disease among sheep, it is pro- 
vided by statute, that any person being the owner of sheep, 
or having them in charge, who shall turn out, or suffer any 
sheep having any contagious disease, knowing them, to be 
diseased, to run at large upon any common, highwaj^ or 
uninclosed grounds, or who shall sell any such sheep, 
knowing them to be diseased, without fully disclosing the 
fact to the purchaser, shall be deemed guilty of a misde- 
meanor, and be punished by a fine of not less than two nor 
more than twenty-five dollars for each diseased sheep, to 
be recovered as other penalties for like offenses. 3 

When dead animals must be buried or burned. — The act of 
March 11, 1867, provides that in all cases where any hog, 
shoat, or other domestic animal, shall die of the disease 
commonly called " hog cholera," or any other disease, it 
shall be the duty of the owner, or owners, of such hog, 
shoat, or other domestic animal, or the person, or persons, 

X 1R. S. 1876, 71. 2 7 Ind. 317. 3 1 R. S. 1876, 71. 



8 ANIMALS. 



having the care and custody of the same, having knowl- 
edge of the fact, or upon receiving notice thereof, to cause 
the carcass of such animal, without unnecessary delay, to 
be burned, or safely and securely buried, and on failure to 
do so, will be guilty of a misdemeanor and subject to a fine 
of not less than ten nor more than fifty dollars. 1 

Liseased cattle, when owner of is liable for damages. — It is 
unlawful for any person to bring into the state any cattle 
infected with the disease known as " Texas or Spanish fe-. 
ver," or any cattle liable to impart such fever to other 
cattle, and any person doing so, will be liable in a civil 
action to the person whose cattle may be thereby diseased, 
for the damages sustained by him. 2 

Evidence in suits against owner of diseased cattle. — When 
any Texas or Cherokee cattle, liable to impart such fever, 
shall be brought into the State of Indiana, and any disease, 
kaiown as Texas or Spanish fever, shall make its appear- 
ance within sixty days and infect other cattle with the dis- 
ease that have been on the same highway, common, or 
pasturage ground, traveled over by such Texas or Chero- 
kee cattle, such fact shall be deemed and taken as 'prima 
facie evidence that the Texas or Cherokee cattle were in- 
fected with the disease known as Texas or Spanish fever, 
and that they did impart the disease; and the owner or 
owners of such Texas or Cherokee cattle, at the time of 
bringing the cattle into the state, and the owner or owners of 
the cattle at the time the disease shall make its appearance, 
shall be jointly or severally liable for any damages result- 
ing from the disease, and if such fever is imparted to any 
cattle within sixty days on any highway, common, or pas- 
ture-ground, over which more than one drove or herd of 
Texas or Cherokee catile have passed, the owner or own- 
ers of each herd or drove of such cattle shall be jointly or 
severally liable for all damages resulting from the disease j 
but on the trial of an action brought to recover such dam- 

l lU. S. 1876, 68. 2 1R. S. 1876,66. 



ANIMALS. 9 



ages, any defendant will have the right to prove, by any 
competent evidence, that his herd did not impart the dis- 
ease, and if such proof is made to the satisfaction of the 
court or jury trying the cause, the defendant making such 
proof, will be entitled to judgment in his favor. 

When unlawful to bring Texas cattle into state. — Any per- 
son bringing Texas or Cherokee cattle into this state at 
any time before the first of October, and after the first day 
of April of any year, and any person purchasing such 
cattle will be guilty of a misdemeanor, and liable to a fine 
of not less than one thousand and not more than ten thous- 
and dollars, and may be imprisoned in the county jail in 
the discretion of the court trying the cause, not exceeding 
one year. The statute, however, does not prevent persons 
from shipping cattle through this state on railroads to 
other states, nor does it apply to cattle that have been 
during all the previous winter, north of the thirty-eighth 
degree of latitude; but in all cases where Texas or Chero- 
kee cattle shall be brought into this state before the first 
day of October and after the first day of March in any 
year, the legal presumption will be that such cattle have 
not been during all the previous winter, north of the thir- 
ty-eighth parallel of latitude, and it will devolve on the 
owner of such cattle to prove the contrary. 1 

Cruelty to animals. — Any person who shall cruelly beat, 
or torture, or over-drive any horse or other animal, 
whether belonging to himself or another, shall be deemed 
guilty of a misdemeanor, and, upon conviction shall be 
fined in any sum not exceeding one hundred dollars. 2 

UR. S. 1876,67. 2 2 R. S. 1876,484. 



10 APPRENTICES. 



CHAPTER II. 

APPRENTICES. 1 

When township trustees may bind. — Township trustees 
are, by virtue of their office, overseers of the poor, and 
may, in their respective townships, bind children who are 
under sixteen years of age, in the following cases: 

First. The child of any pauper, supported in whole or in 
part by the county. 

Second. Any child whose parents abandon or neglect, or 
are unable to support it. 

Third. Any child having neither father, mother, nor 
guardian, and having no sufficient means of support and 
education. 

Fourth. Any white child taken from any asylum in any 
other state, and brought into this state to be bound. 2 

No indenture of any child under the first or second of 
the above specifications will be valid, unless the assent of 
the judge having probate jurisdiction in the county where 
the child is bound is obtained. His assent must be in- 
dorsed upon the indenture and he may withhold it until 
notice is given to the parents of the child, and they are ex- 
amined as to the propriety thereof. 

How long children may be bound. — Male children may be 
bound until they are twenty-one years of age, and females 
until they are eighteen; but the marriage of a female shall 
annul her indenture, without regard to her age. 3 

A child can not be bound for a time beyond the ages 
named, but may be for a shorter period. 

Superintendents of county asylums may bind. — It is made 
the duty of superintendents of county asylums, by statute. 

1 1 R. S. 1876, 626. 2 4 Blackf. 132. 

3 3 Ind. 537; 6 Ind. 262; 25 Ind. 427. 



APPRENTICES. 11 



to bind out such poor children as, from time to time, may 
be under their care and charge. 1 

Indentures where child is taken from a foreign asylum. — 
Indentures binding a child taken from an asylum in an- 
other state to a person in this state, will be valid if such 
indenture contains the covenants on the part of the master 
required of persons procuring children from such asylums, 
by the laws of the state where they are situated, but not 
for a longer period than children may be bound by the 
laws of this state. 

How executed, where filed and recorded.- — All indentures 
shall be signed by the parties thereto, and acknowledged 
by them before some officer authorized to take acknowledg- 
ments of deeds, and the indentures must be in two parts, 
one to be kept by the master or mistress, and the other to 
be filed in the office of the clerk of the circuit court of the 
proper county, for the use of the apprentice, and the mas- 
ter or mistress must cause the indentures to be recorded in 
the recorder's office of the county where the master or mis- 
tress lives, within ninety days after the execution thereof, 
for which the recorder is ^entitled to a fee of fifty cents. 

In the execution of indentures of apprenticeship, the re- 
quirements of the statute must be strictly followed. No 
written instrument will be good as an indenture, unless it 
contains the agreements required by statute, and is ac- 
knowledged and recorded. 2 

Damages for failing to educate apprentice. — If the master 
or mistress fail to furnish the instruction required by the 
indentures, such master or mistress will be liable to the ap- 
prentice for such failure and the measure of damages will 
be what the value of the instruction would have been to 
the apprentice if given, which shall be determined by the 
verdict of a jury and the statute does not seem to limit the 
amount of the recovery. 

The stipulation in the indentures of an apprentice in re- 

1 1 R. S. 1876, 681. 2 3 Ind. 537 ; 5 Ind. 142 ; 6 Ind. 262 ; 25 Ind. 427. 



12 APPRENTICES. 



gard to his education can, therefore, be disregarded only 
at very great hazard to the master or mistress. Such in- 
struction must be furnished if practicable. A fair con- 
struction of the language of the statute would seem to be 
that the branches mentioned must be taught if possible. 

That it is merely inconvenient, or very difficult, will not 
excuse the master or mistress from the fulfillment of this 
agreement. Want of mental capacity on the part of the 
apprentice to acquire such education, or physical inability 
to attend upon the means of instruction, or the uncontrollable 
disobedience and insubordination of the apprentice, would 
render a compliance with the covenants of the indentures 
impracticable, and the master or mistress would not be 
liable. 

If the apprentice have only three years, or less, to serve, 
or if the apprentice be a colored child, then no agreement 
as to the education of the apprentice is necessary to the 
validity of the indentures. Such seems to be the plain 
meaning of the statute ; but since the enactment of the law 
upon the subject of master and apprentice, the legislature 
has made provision for the education of colored children, 
there seems to be no longer any good reason for such 
a discrimination against that class of children, and over- 
seers of the poor should in such cases require the same 
agreement as to education that is required in the case of 
white children, and where the apprentice has less than 
three years to serve, although the indentures will be valid 
without any stipulation as to education, it is nevertheless 
the duty of overseers of the poor to provide for the educa- 
tion of the apprentice, as far as practicable in all such 
cases. 

Valuable agreements in indentures. — All valuable agree- 
ments in any indenture, on the part of the master or 
mistress, shall be for the benefit of the apprentice, and, if 
stipulated therein, to be for the benefit of any other per- 
son, shall nevertheless stand for the benefit of the appren- 



APPRENTICES. 13 



tice, and may be sued on, and a recovery had in his or her 
name. 1 

Circuit court may annul indentures. — The circuit court 
of each county where the master or mistress resides may, 
on complaint in writing, by any party to such indentures, 
or by any person on behalf of such apprentice, annul the 
same for the misconduct of the master or mistress, the 
court causing such notice as it may deem proper to be 
given to the parties ; and if the indentures are annulled for 
the misconduct of the master or mistress, the court will 
render judgment in favor of the apprentice for such amount 
as may be proper. 

Court may compel absconding apprentice to return. — The 
circuit court may, on application of the master or mistress, 
cause an absconding apprentice to return to such master or 
mistress ; or, if he shall refuse, may commit him to jail. 
In all proceedings for this purpose, and to annul the in- 
dentures, the court may make such order as to the pay- 
ment of costs as may be deemed just. 

Indentures can not be assigned 2 — Death or removal of the 
master. — No indenture of- any apprentice can be assigned, 
except by trustees of manual labor schools, as will be 
presently explained. The death, or removal from the 
state, of the master or mistress, shall discharge the appren- 
tice from all farther obligation ; but in case of removal of 
the master or mistress, it is optional with the apprentice 
whether he will treat such removal as a release from the 
indenture. The master or mistress can not be released 
from the obligation of the indenture by removal from the 
state, without the consent of the apprentice that such re- 
moval shall so operate. 

Number of hours per day apprentice may be required to 
labor. — The statute provides that an apprentice shall not 
be required to work more than ten hours a day, without 
additional compensation. By a fair inference, the statute 

1 3 Blackf. 61 ; 5 Ind. 538. 2 3 Ind. 125. 



14 APPRENTICES. 



seems to permit the master or mistress to require the ap- 
prentice to labor more than ten hours per day, by making 
compensation for the additional time; but if the apprentice 
should be compelled to labor an unreasonable number of 
hours, it would be good cause for annulling the indentures 
and assessment of damages, on complaint made to the cir- 
cuit court, even though such additional compensation be 
made. 

Child may be bound by father, mother, or guardian.— 
Children may also be bound by the father, or if there be 
no father, or he be incompetent, then by the mother, or if 
there be neither father or mother competent to act, then 
by the guardian. If the child is over fourteen years of 
age, his or her assent to the indentures must be indorsed 
thereon and signed by such apprentice, and if such assent 
be not indorsed and signed the indentures will not be 
valid. 1 

When minor may bind himself. — Any child over the age 
of fourteen years, having neither father, mother, or guard- 
ian, may bind himself or herself, with the assent of the 
circuit judge of the county in which the indentures are 
executed, to be indorsed thereon by such judge. 

By the act of March 7, 1875, it is also provided that any 
manual labor school, organized and incorporated under any 
law of the state, may accept and execute indentures of ap- 
prenticeship, and may have the same rights and assume 
the same liabilities as in the case of natural persons. The 
indentures must be executed for and in the name of the 
corporation, by the trustees thereof, or by some person or 
officer thereto authorized by the trustees. Children may 
be bound to such corporations in any of the cases where 
they may be bound to natural persons, and under the same 
rules and restrictions. 

Indentures may be transferred. — It is also provided by the 
statute that the corporation may, with the consent of the 



1 4 Blackf. 337. 



APPRENTICES. 15 



apprentice and his parents, if living in this state, and upon 
the order of the judge of the circuit court, transfer any 
indenture taken in accordance with the act of 1875, to any 
person of lawful age, capable of making a contract. Ti,e 
transfer must be made by an agreement in writing, signed 
by the secretary or some person or officer authorized by 
them, and also by the person accepting such transfer, and 
must be approved by the circuit judge. The agreement 
of transfer must also contain a stipulation on the part of 
the person receiving the transfer, to assume and be bound 
by all the covenants in the indenture agreed to be per- 
formed by such corporation, and the agreement must be 
executed, acknowledged, and recorded in the same manner 
as the indentures are required to be. 

Personal liability of trustees. — The trustees of the corpo- 
ration will be personally liable, during the existence of the 
indentures, o'r until a legal transfer thereof is made, for 
the performance of all the covenants and agreements 
therein stipulated to be performed by the corporation ; but 
upon the execution of the transfer, according to law, all 
the rights and liabilities of the trustees will terminate, and 
will vest in and be assumed by the person to whom the in- 
dentures are transferred, with the same effect as if he had 
been the original party to such indentures, instead of the 
corporation. 

When trustees of soldiers' home may bind children. 1 — The 
trustees of the soldiers' home, when in their judgment it 
shall seem advisable, may indenture children placed in 
their care during minority, to such persons, and at such 
places in the state, and to learn such trades or employ- 
ments, as in the opinion of such trustees shall be most con- 
ducive to the welfare of such children; but no such in- 
denture will be valid that does not secure to the child all 
the benefits prescribed by the laws in force, governing 
the relation of master and apprentice, and it is the duty of 

1 1 R. S. 1876, 850. 



16 APPRENTICES. 



the trustees to see that such children are properly treated 
by the persons to whom they are bound, and to prosecute 
in the name of the state, all violations of such indentures 
prejudicial to such children, and the damages recovered 
will belong to the child in whose behalf the suit is brought. 
Suit not to be brought on indenture after two years. — The 
statute provides that no suit shall be brought on any in- 
denture after two years from the expiration of any term 
of service. 

Indenture of Apprenticeship. 

This indenture made and concluded between A. B., 
trustee of township, county of , and State of Indi- 

ana, and by virtue of bis office of overseer of the poor of 
said township, of the first part, and C. D., of town- 

ship, county of , State of Indiana, of the second part, 

witnesseth : 

That said party of the first part, as such overseer of the 
poor, does, by these presents bind E, F., aged ten years, on 
the 14th day of May, 1877, and who is the child of G-. H., 
a pauper, supported by the county of [or any other 

cause for which a child may be bound'], as an apprentice to 
the party of the second part, until the said E. F. shall ar- 
rive at the age of twenty-one years, to learn the trade and 
occupation of a , and the said party of the first part 

as such overseer of the poor, covenants with the said party 
of the second part, that said E. F. will serve him faithfully ? 
and will correctly demean himself, during the term of his 
apprenticeship. 

And the party of the second part, covenants and agrees 
with the party of the first part, for the use and benefit of the 
said apprentice, that he will teach the said E. F. the trade 
and occupation of a , during said term of apprenticeship, 
and will, during such term, board and lodge him, and fur- 
nish him with good and comfortable clothing, and wash 
and mend the same, and, in case of his sickness, will fur- 
nish him with medicines and medical attendance [if the ap- 



APPRENTICES. 17 



prentice have more than three years to serve, add], and will 
cause him to be taught to read and write, and the rules of 
arithmetic to, and including the double rule of three, if 
the same be practicable, and at the expiration of his term 
of apprenticeship will [here state what is to be paid to the 
apprentice at the expiration of his apprenticeship]. 

In witness whereof, the parties have hereunto set their 
hands and seals, the dav of 1877. 

A. B. [seal.] 

Overseer of the poor of township. 

C. D. [seal.] 



18 ASSESSMENT OP TAXES. 



CHAPTER III. 

ASSESSMENT OF TAXES. 1 

State taxes, on what and how assessed. — All taxes for the 
support of the state government are assessed on polls and 
property listed and valued in an equal and ratable pro- 
portion, except such stocks or other property as may be 
specifically taxed, as follows; 

The amount necessary and proper to be charged on each 
poll and on each one hundred dollars worth of property for 
state expenditures and for school purposes, shall from time 
to time be fixed by law, and the amount to be charged on 
each poll and each one hundred dollars worth of property 
for county expenditures, must be fixed by the board of 
county commissioners at their annual meeting in June. 

Who are liable to pay poll fax. — A poll tax shall be 
assessed upon every male inhabitant of this state, between 
the ages of twenty -one and fifty years. 

What property liable to taxation — All real property within 
this state, and all personal property owned by persons re- 
siding in this state, whether it is in or out of the state, and 
all personal property within this state, owned by persons 
not residing within the state, subject to the exceptions 
hereinafter explained, is subject to taxation. 

Terms " real property" and "lands" defined. — The terms 
"real property" and -lands," as used in the act providing 
for the assessment of taxes, means and includes not only 
the land itself, whether laid out in town lots or otherwise, 
with all things contained therein, but also all buildings, 
structures and implements, trees, and other fixtures of 
whatsoever kind thereon, and all rights and privileges be- 
longing, or in anywise appertaining thereto. 

*22 Ind. 204; 27 Ind. 223; 29 Ind. 329. 



ASSESSMENT OF TAXES. 19 

Definition of "personal estate" and " personal property." — 
The terms "personal estate" and "personal property," as 
used in the same act, is construed to include all household 
furniture, goods, and chattels, and effects of whatever 
kind ; all moneys on hand or on deposit, either within 
or without this state; all steamboats, sailing vessels, 
wharf-boats, barges, flat boats, canal boats, or other water- 
craft, whether within or without this state; all money at 
interest ; all bonds or stocks, whether of bodies politic or 
corporate; and all other credits or investments, whether 
within or without this state ; and the shares of stock of in- 
corporated companies and associations organized under any 
law of this state or the United States. 

All property of private corporations, except in the cases 
where some other provision is made by law, shall be 
assessed in the name of the corporation, in the township, 
city, or town where the same shall be situated ; and in col- 
lecting the same all the personal property of the corpora- 
tion shall be liable to be seized wherever the same may be 
found in the county, and sold in the same manner as the 
property of individuals niay be sold for taxes. 

Property exempt from taxation. — The following property 
shall be exempt from taxation : * 

First. The property of the United States and of this 
state. 

Second. The property of any county, city, or town. 

Third. All fire-engine, and other instruments used for 
the safe-keeping thereof, and the land on which the build- 
ing is located, when belonging to any town or city. 

Fourth. Every building erected for religious worship, 
and the pews and furniture within the same, and the lands 

1 Statutes which exempt property from taxation must be strictly 
construed. 38 Ind. 3. 



20 ASSESSMENT OF TAXES. 

whereon such building is situated, not exceeding ten acres ; 
also every cemetery. 1 

Fifth. Every building erected for the use of any liter- 
ary, benevolent, charitable, or scientific institution, or by 
any individual or individuals, association or corporation, 
erected for the same purpose by any town, township, or 
county, and the tract of land on which such building is 
situate, not exceeding twenty acres; also, the personal 
property belonging to any institution, town, township, 
city, or county, and connected with or set apart for any 
of the purposes aforesaid. 1 

Sixth. All lands granted for the use of common schools, 
so long as the same shall remain unsold. 

Seventh. The personal property and real estate of every 
manual-labor school, or college, incorporated within this 
state, when used or occupied for the purposes for which it 
was incorporated, such real estate not to exceed three hun- 
dred and twenty acres. 

Eighth. The property of any widow or unmarried fe- 
male, or of any female minor whose father is deceased, to 
the amount of five hundred dollars, if her whole estate, 
real and personal, not otherwise exempted from taxation, 
does not exceed in value the sum of one thousand dollars. 

If used for other purposes, to be subject to taxation. — If 
any part, parcel, or portion of any tract or lot of land, or 
of any buildings or personal property, enumerated above 
as exempt from taxation, shall be used or occupied for any 
other purpose or purposes than those named, by reason 
whereof they are exempted from taxation, such part, par- 
cel, or portion will be subject to taxation so long as the 
same shall not be set apart or used, exclusively, for some 
one of the purposes specified in the foregoing enumera- 
tion. 

2 But this does not embrace parsonages, and they are subject to tax- 
ation. 38 Ind. 3 ; 4 Ind. 86; 8 Ind. 328. 



ASSESSMENT OF TAXES. 21 

Lands sold by the state subject to taxation. 1 — Lands sold by 
the state, including lands forfeited to the sinking fund, uni- 
versity fund, and all other trust funds, though not granted 
or conveyed, shall be assessed in the same manner as if ac- 
tually conveyed. 

Lands reserved to any person by treaty. — All lands re- 
served to or for any individual, by any treaty between the 
United States and any Indian tribe or nation, shall be li- 
able to taxation from the time such treaty shall have been 
confirmed. 

When property is destroyed after assessment. — Where prop- 
erty, after being assessed for the year, is destroyed by fire, 
flood, tornado, or other unavoidable casualty, the auditor, 
on being satisfied thereof, may rebate from the taxes of 
that year, so much as may have been assessed on the prop- 
erty destroyed. But such rebate can only be allowed on 
so much of the loss as is not covered by insurance. 

Upon proper proof being made to the auditor, he is 
bound to rebate the taxes to the extent provided by stat- 
ute. The word " may " should be construed to mean 
"must," and the auditor has no discretion. 

Assessors, election of. 2 — An assessor is required to be 
elected by the voters of each township, at the April elec- 
tion, who will hold his office for two years, and until his 
successor is elected and qualified. 

Before entering upon the discharge of the duties of his 
office, the assessor must give a bond, with good and suffi- 
cient security, to the acceptance of the board of county 
commissioners, in the sum of two thousand dollars, pay- 
able to the State of Indiana, and conditioned for the faith- 
ful and impartial discharge of the duties of his office, ac- 
cording to law, and must take and subscribe an oath or af- 
firmation, to be indorsed on the bond, that he will faith- 
fully and impartially discharge the duties of his office to 

1 49 Ind. 272. 2 1 R. S. 1876, 98. 



22 ASSESSMENT OF TAXES. 

the best of his skill and ability, and the bond so indorsed 
must be deposited with the county auditor, who is author 
ized to administer such oath. 

If assessor fail to qualify, auditor to appoint — If the per- 
son elected fail to qualify in ninety days after his election, 
the office will be vacant, and the auditor will, without de- 
lay, fill the vacancy by appointment, and the person so 
appointed must give a like bond, and take the same oath 
required of a person elected to the office. 

County auditor to furnish blanks. — It is the duty of the 
county auditor to furnish the assessors of his county with all 
blanks necessary to be used by them in the discbarge of 
their official duties. 

Under the statute now in force, real estate is assessed 
for taxation every fifth year, counting from 1875. Every 
owner of real estate must be assessed with the lands owned 
by him on the first day of April of the current year, in- 
cluding the lands purchased by him on that day. No 
assessment of lands is invalid by reason of not being listed 
or assessed in the name of any other person than the 
owner. 

When auditor must furnish list of lands to assessor. — On 
or before the first day of April of each year in which real 
estate is to be assessed, the auditor must deliver to each 
assessor, by civil townships, lists of all lands, including 
town and city lots, entered on the duplicate of the same 
and preceding year, noting thereon all transfers which 
may have been made subsequent to making out such du- 
plicate, and must also enter on such list all new entries and 
other lands and town lots lying within his county which 
may come to his knowledge, and not previously entered 
for taxation. I 

Auditor must furnish plat of townships. — The assessor is 
also entitled to receive from the auditor a plat of his town- 
ship, divided into sections and quarter sections, at the same 



ASSESSMENT OP TAXES. 23 

time the blanks are furnished, and the assessor must desig- 
nate the lands of each person on such plat. 1 

Assessment of real estate, how made. 1 — The assessor must 
make a true valuation of all the lands in his township sub- 
ject to taxation, upon actual view, together with the im- 
provements and buildings thereon, or affixed thereto, at 
their full, fair cash value, which the statute defines to be 
the price which could be obtained therefor at private sale, 
taking into consideration the fertility and quality of the 
soil, the vicinity of the same to railroads, turnpikes, mac- 
adamized, clay and gravel roads, state and county roads, 
cities, towns, and villages, navigable rivers, canals, and any 
water privileges on the same or in the vicinity, and any 
other local advantages of situation. The lands having im- 
provements thereon must be valued at their fair cash 
value, without taking into consideration the improvements, 
that is, they must be appraised as if no improvements were 
upon them, and such valuation must be set down in a sep- 
arate column, and the valuation of such land must, with 
the valuation of the improvements added, be set down in 
another column. All lots" in cities, towns, and villages, 
and improvements thereon, or affixed thereto, must be as- 
sessed as other realty, at their full and true cash value, 
taking into consideration local advantages, and such prop- 
erty must also be assessed upon actual view. 

When land must be assessed in name of occupant. — Lands 
occupied by any person not the owner thereof shall be 
listed in the name of the owner, if known, otherwise in 
the name of the occupant; and for the taxes, if paid by 
such occupant, he shall have his action against the owner, 
and lands not occupied must be listed in the name of the 
owner, if known, otherwise as "lands of persons unknown." 

How lands in Clark's grant, etc., assessed. — When the line 
between two townships divides a tract of land, lying in the 
grants to English or French emigrants, or in Clark's grant, 

>1R. S., 1876,99. 



24 ASSESSMENT OF TAXES. 

or in individual Indian reserves (surveyed differently from 
the United States surveys), if listed to the owner thereof, 
he being a resident of either township in which a part of 
such tract of land may lie, or if listed to the occupant, the 
same shall be listed in the township in which such owner 
or occupant shall reside; and, in all other cases, the same 
shall be listed in the township in which the greater part 
thereof lies. 

Mortgaged property. — When personal property is mort- 
gaged or pledged, it shall, for the purposes of taxation, be 
deemed the property of the party who has the same in 
possession, and in cases of mortgaged real estate, the mort- 
gagor shall, for the purposes of taxation, be deemed the 
owner, until the mortgagee shall have taken possession of 
the mortgaged pemises, after which the mortgagee shall be 
deemed the owner. 1 

Undivided lands of deceased person. — The undivided real 
estate of any deceased person may be listed to the heirs or 
devisees without designating them by name, until they 
shall have given notice to the auditor of the county or 
counties, in which such real estate is situated, cf the divi- 
sion of the same, and the names of the several heirs or 
devisees and the proportion allotted to each, and each heir 
or devisee shall be liable for the whole of such tax, and 
shall have a right to recover of the other heirs or devisees 
their respective proportions thereof, when paid by him. 

Partners in mercantile business. — Partners in mercantile 
or other business, may be jointly listed in their partner- 
ship name, in the township where their business is carried 
on, for all their personal property employed in such busi- 
ness; and, in case of being so jointly listed, each partner 
will be liable for the whole tax. 

How real estate must be valued? — The statute provides 
that real property shall be valued as follows : 

First. Each tract or lot of real property at its fair cash 

x 52 Ind. 233, 331. 2 1 R. S. 1876, 75 



ASSESSMENT OF TAXES. 25 

value, estimated at the price it would bring at a fair, vol- 
untary sale. 

Second. Taxable leasehold estates must be valued at 
such price as they would bring at a fair, voluntary sale for 
cash. 

Third. When a building or structure, on the right of 
way of any canal, railroad, or other company, is leased or 
granted for a term of years to another, it may be valued 
at such price, as such building or structure and lease or 
grant would sell for at a fair, voluntary sale for cash. 

Fourth In valuing and assessing any real property on 
which there is a coal or other mine, or stone or other 
quarry, it must be valued at such a price as the property 
including the mine or quarry would sell for at a volun- 
tary cash sale. 

Assessor must call on every person for list of lands} — The 
statute requires the assessor to call upon every resident of 
his township, for a list of his lands and town lots, in such 
township, subject to taxation, and he will be furnished by 
the county auditor with blank forms, which he must re- 
quire such person to fill Up, so that the same will show 
particularly the name or names of the owner or owners, 
the number of acres in each particular tract, lot, or subdi- 
vision, the range, township, section, quarter-section, tract, 
lot, or part thereof, or the number of the entry, location 
or survey and water-course, as the nature of the general 
or particular survey may require, and if the same can not 
be described by the congressional survey, then it shall be 
described by metes and bounds, so as to clearly designate 
and identify the particular land to be listed. In the 
French and English grants, or Clark's grant, the list must 
set forth the quantity of land contained in the original 
survey, of which the tract listed is a part, the number of 
the entry, water-course, and the name of the original pro- 
prietor. Town lots must be described by the numbers by 

1 1 R. S. 1876, 100. 



26 ASSESSMENT OP TAXES. 

which they are designated on the recorded plat of the 
town or city, or part thereof, if it has been subdivided, in 
which such lots are located. 

The owner of the lands to be assessed may make the list, 
or the assessor may make it from information furnished by 
the owner, and such list must be signed by such person. 

When owner is absent or refuses to list. — If the owner or 
owners of any real estate subject to taxation, be absent or 
unable to furnish a list thereof, when called upon by the 
assessor, or shall not reside within the county, or shall fail 
or refuse to furnish such list, it is the duty of the assessor 
to make such list according to the best information he can 
obtain; and he must assess such property in the name of 
the owner or owners, if known, or, if not known, then in 
the name of the person to whom the same is already listed, 
and if it is not listed to any one, and the owners name is 
unknown, it must then be noted in the column ef names 
that the owner is unknown, and to enable the assessor to 
ascertain the facts in such case, he may examine, on oath 
or affirmation any person whom he may suppose to have 
knowledge of the amount, description, and value of the 
lands. 

How the quantity of land is ascertained. 1 — In ascertaining 
the quantity of land in the tract to be listed, the assessor 
should be governed by the deed or patent for the land held 
by the person, if he have any, if such deed or patent spe- 
cifies the quantity. If, however, the land has been sur- 
veyed after the survey made by the United States, and it 
shall be proven to the satisfaction of the assessor that any 
tract contains a greater or less quantity of land than is de- 
scribed in the patent or deed under which the land is held, 
then the assessor must charge the owner with the true 
amount ascertained by such subsequent survey. 

If the quantity of land described in the deed or patent 
under which the person holds, is stated, the assessor may 

*1 R. S. 1876, 101. 



ASSESSMENT OP TAXES. 27 

safely assume that it is correctly stated, until the contrary 
is made to appear. 

If the land to be assessed is in the French or Clarks 
grant, and the owner or person in whose name the land is 
listed, holds under an original entry or survey, with or 
without patent thereon, it is the duty of the assessor to re- 
quire the owner or holder to cause the land to be surveyed 
by the county surveyor, or some other competent person, 
and to return the quantity ascertained by such survey, 
under the sworn certificate of the surveyor within sixty 
days from the time such person is called on to list such 
land. 

If the owner neglect to make the survey, or is a non-res- 
ident of the county, then the assessor must cause the sur- 
vey to be made and returned to himself, and the expense 
thereof will be paid out of the county treasury and as- 
sessed against the land the succeeding year, and collected 
as other taxes. 

But if any owner or holder of lands has had them pre- 
viously surveyed, and shall produce to the assessor a cer- 
tificate of survey other than that under the original entry 
of said lands, the assessor may accept such survey ; or, if 
the assessor be satisfied from other competent evidence ad- 
duced to him under oath or affirmation that the quantit}^ 
returned is correct, and that no surplus exists in the orig- 
inal survey, the assessor shall enter and return the same 
for taxation without further survey. The assessor may de- 
duct from the value of* any tract of land, the amount of 
the land occupied and used by any railroad or canal at the 
time of assessment. 

Assessor must inform owner of assessment, etc. 1 — The as- 
sessor, at the time of making the assessment, must inform 
the owner, his agent or representative, if residing in the 
county, of the description and value of each tract of hind 
or lot, the amount at which the land has been assessed, and 

x l R. S. 1876, 102. 



28 ASSESSMENT OF TAXES. 



the time when the board of equalization, for the county, 
will meet for the purpose of hearing and determining 
grievances, and equalizing taxes within the county ; or he 
must furnish him a memorandum setting forth the same 
facts. 

Assessors may enter premises with consent of owner} — For 
the purpose of enabling the assessor to ascertain the value 
of buildings or other improvements, he is required, with 
the consent of the owner, to enter and fully examine all 
buildings and structures of every kind that are not ex- 
pressly exempted from taxation. A fair construction of 
the statute seems to be, that if the owner should refuse 
permission to the assessor to enter his premises, he is not 
required to do so, but may ascertain their value by the ex- 
amination of the owner or other person under oath or 
affirmation, and make the assessment from the information 
so obtained. 

Return of assessment of real estate. 1 — Each assessor must, 
on or before the first Monday of June, in each year in 
which real estate is assessed, make out and deliver to 
the auditor of his county a return, in tabular form and 
alphabetical order, contained in a book to be furnished him 
by such auditor, of the amount, description, and value of 
all the real estate subject to be listed for taxation in his 
township, which return shall contain : 

First. The names, arranged in alphabetical order, of 
the several persons, companies, or corporations, in whose 
name the several parcels of real estate in each township 
within his county shall have been listed, and in appropri- 
ate columns, opposite each name the description, in man- 
ner as hereinafter required, of each parcel of such real 
estate listed in such name, and the value of each sepa- 
rate parcel of such real property, as determined by the as- 
sessor from actual view. 

Second. The names, arranged in alphabetical order, of 

HR. S. 1876, 102. 



ASSESSMENT OF TAXES. 29 

the several persons, companies, or corporations in whose 
names the several parcels of real property in any town or 
towns in his county shall have been listed, and in the 
appropriate columns, opposite each name, a description as 
hereafter set forth, of each parcel of real property in 
each town in his county, and the value thereof, as deter- 
mined by the appraisers, as above specified, and such re- 
turn shall distinctly set forth the name or names of the 
owner or owners of each separate parcel of real property, 
if known; and if unknown, that fact should be set forth. 
Also, a description of each separate parcel of land or real 
property, in the following manner: if a town lot or part 
thereof, the name of the town, the number or other designa- 
tion of the lot ; and if a part of such lot, then the proportion 
and situation thereof, and the extent in feet along the 
principal street on which it shall abut. If the parcel of 
real property be other than a town lot, or a parcel thereof, 
the number of acres, the range of townships, the number 
of townships, the number of section, tract, lot, or subdi- 
vision of either, or other general designation of any sub- 
division, if there be no number, as the case may require. 
If such land be situated in the French or Clark's grant, 
or is not embraced in any land district, it shall set forth 
the original survey or surveys, part or parts thereof, con- 
tained in each separate parcel so listed ; and if any separate 
parcel of land shall comprehend the whole or parts of any 
two or more sections, lots, tracts, or surveys, then the 
statement shall set forth, as nearly as may be, the number 
of acres taken from each section, lot, tract, or survey in- 
cluded in each parcel. 

Each appraiser and deputy-appraiser shall take and sub- 
scribe on oath, which shall be certified by the magistrate, 
or other officer administering the same, and attached to the 
return he is required to make to the county auditor, the 
form of which will be found with the blanks required, to 
be furnished by the county auditor. 



30 ASSESSMENT OF TAXES. 

New improvements to be assessed. 1 — Each assessor must, 
every year, except when real estate is assessed, at the time 
of assessing personal property, also take a list of all real 
estate situate in his township, that has become subject to 
taxation since the last previous listing of joroperty therein, 
with the value thereof, estimated agreeably to the laws 
regulating the duties of assessors in relation to the assess- 
ment of real estate, and all new improvements, buildings, or 
other structures of any kind, the value of which shall not 
have been previously added to or included in the valuation 
of the land on which such improvements have been made, 
and make return thereof to the county auditor, at the same 
time that he is required to make return of personal property ; 
in which return he shall set forth the parcel of real property 
on which each of such improvements shall have been made 
or structures erected, and the true value added to such 
parcel of real estate by the making of such improvements, 
or the erection of such structure, and the additional sum 
which it is believed the land on which the improvement 
shall have been made, or structure erected, will sell for at 
private sale, in consequence thereof, shall be considered 
the value of such improvement or structure. 

When improvements are destroyed. 1 — In ease of the de- 
struction by fire, flood, or otherwise, of any improvement, 
building, or structure of any kind, which were erected 
previous to the last valuation of the land on which the 
same were, and the value of which shall have been added 
to any former valuation of such land, the assessor shall 
determine, as nearly as practicable, how much less such 
land would sell for at private sale in consequence of such 
destruction, and make return thereof to the county auditor, 
as provided in relation to improvements made and struc- 
tures erected. 

Refusal to list. 2 — The assessor must enter in a column of 
the blanks furnished to him, provided for that purpose, 

1 1 R. S. 1876, 106. 2 Ibid, 104. 



ASSESSMENT OF TAXES. 31 

opposite the name of every person, company, or corpora- 
tion required to list real estate, who shall refuse to furnish 
a list, the words " refused to furnish a list," and he must 
notify the person of the penalty for such refusal, which is 
that the county auditor must add twenty-five per cent, to 
the value of all real estate owned by the person, company, 
or corporation so refusing, as fixed by the assessor, accord- 
ing to the best information he can obtain. 

Return of assessors and correction of errors. 1 — The assessor 
must, at the time he makes his return of the taxable real 
property to the county auditor, also deliver to him all the 
statements of property he has received from persons re- 
quired to list real estate, and must arrange them in alpha- 
betical order, and the auditor must preserve the same in 
his office. If the auditor is satisfied that the assessor has 
omitted any real estate which he ought to return, he must 
require the assessor to make the correction, and he must 
do so and make, return thereof in ten days, and the cor- 
rection must be made on the list of assessments, but the 
assessor can not reduce the amount of any assessment 
made against any person. 

The auditor may, from time to time, correct errors in 
the amount or description of lands upon his list of real 
property. 

Assessments of personal property, when made} — The as- 
sessor must, between the first day of April and the first 
day of June of each year, call at the office, place of business, 
or residence of every person in his township required to 
list property for taxation, and take a list of all the taxable 
personal property of such persons, and assess the value 
thereof, and every such person when so called on must 
forthwith make a true statement in writing to the assessor, 
setting forth a correct description of all the personal prop- 
erty of which such person was on the first day of April of 
the current year the owner, or holder as guardian, parent, 

'1R.S. 1876, 104. 



32 ASSESSMENT OP TAXES. 

receiver, husband or trustee, administrator, accounting 
officer, partner, agent, or factor, and also all moneys and 
credits owned or held by such person in any of the capac- 
ities just enumerated. The printed blanks furnished to 
assessors will be a sufficient guide in making the statement 
of taxable properly in all ordinary cases. 

In each year in which real estate is listed and assessed, 
personal property must be assessed at the same time, and 
by the same persons. 

Assessor must fix value, and how. — The assessor must fix 
the value of each item of personal property, which must 
be the market value thereof at private sale at the place 
where the property is at the time of its liability to assess- 
ment. The value must be determined by the price of such 
property on the first day of April. 

The statement must be sworn to before the assessor by 
the person making it. 

Duty of assessor in ease of refusal to list. 1 — If any person 
shall refuse to make the statement required, or, having 
made it, refuse to verify it by oath or affirmation, the as- 
sessor must proceed to ascertain the amount of personal 
property and effects of such person liable to taxation;, and, 
to enable him to do so, the assessor may examine, on oath, 
any person whom he may suppose has any knowledge on 
the subject, and if such person refuses to be sworn by the 
assessor, or refuses to answer questions, the assessor may 
make application to any justice of the peace of the county, 
who will be authorized to issue a summons for such person, 
requiring him to appear before such justice, at such time as 
the assessor may designate, to answer under oath all perti- 
nent questions put to him by the assessor touching the tax- 
able property of the person refusing to list, and the attend- 
ance of the person summoned may be enforced by attach- 
ment. 

How and by whom indebtedness may be deducted. 2 — In 

HE. S. 1876,85. * Ibid, 86. 



ASSESSMENT OF TAXES. 33 

making up the amount of credits due to himself or to the 
person, company, or corporation he represents, any person 
may deduct from the gross amount thereof all bona fide 
debts owing by him or the person, company, or corporation 
he represents. They must be actual debts for a considera- 
tion believed to be adequate, and must not be debts created 
for the purpose of being deducted from taxable credits. If 
the person making the list is bound as surety he may de- 
duct the amount he believes he will be legally compelled to 
pay if the principal debtor is insolvent. If other sureties 
are also bound with him for the same debt who are liable 
to contribute, then he can only deduct the proportion he 
believes he will be bound to pay. No bank, company, or 
corporation exercising banking powers and privileges is al- 
lowed to make any such deductions in any case, and no 
person, company, or corporation can make deductions from 
any item of taxables except credits; nor can any deduction 
be made from the amount of any bonds, stock, or money 
loaned, or on account of any bond, note, or obligation of 
any kind given to any insurance company on account of 
premiums or policies ; nor on account of any unpaid sub- 
scription to any scientific, religious, literary, or charitable 
institution or society; nor on account of any subscription 
to or installment payable on the capital stock of any com- 
pany, whether incorporated or not. The deductions made 
must form a part of the schedule to be furnished to the as- 
sessor, and must be verified, and such schedule must be filed 
with the auditor by the assessor when he makes return of 
his assessment book. 

When assessment may be completed. — Although the statute 
requires that the assessment of personal property shall be 
completed by the first day of June, it is provided that such 
assessment shall be valid if made after that day and be- 
fore the return of the assessor's books. The assessor would 
probably be liable for neglect of official duty for failing to 
complete the assessment by the first day of June. 



34 ASSESSMENT OF TAXES. 

Personal property, how valued. — Personal property shall 
be valued as follows •} 

First. All personal property, except as otherwise pro- 
vided by statute, must be valued at its fair cash value. 

Second. Every credit for a sum certain, payable either in 
money or labor, shall be valued at a fair cash value for the 
sum so payable. If for any article of property, or for labor 
or services of any kind, it shall be valued at the current 
price of such property, labor, or service. 

Third. Annuities and royalties shall be valued at their 
then present total value. 

Fourth. The capital stock of all companies and associa- 
tions now or hereafter created under the laws of this state 
shall be so valued by the state board of equalization as to 
ascertain and determine, respectively, the fair cash value 
of such capital stock, including the franchise, over and 
above the assessed value of the tangible property of such 
company or association. The state board shall adopt such 
rules and principles for ascertaining the fair cash value of 
such capital stock as to it may seem equitable and just; and 
such rules and principles, when so adopted, if not incon- 
sistent with the statute, will be as binding and of the same 
effect as if contained in the statute, subject, however, to 
such change, alteration, or amendment as may be found 
from time to time, to be necessary by the board. In all 
cases where the tangible property or the capital stock of 
any such company or association is assessed, the shares of 
capital stock of any such company or association shall not 
be assessed or taxed in this state. This provision of the 
statute, however, does not apply to the capital stock or 
shares of capital stock of banks organized under the gen- 
eral banking laws of this state. 

Corporation property, how valued? — Assessors and boards 
of equalization are prohibited by statute from fixing any 
greater value upon the property of companies incorporated 

J 1E. S. 1876, 74. 2 Ibid, 75. 



ASSESSMENT OF TAXES. 35 

under the laws of this state than would be assessed upon 
such property if it belonged to private individuals or firms. 

How property must he listed. 1 — The following are the prin- 
cipal provisions of the statute regulating the manner of 
listing real and personal property. 

First. Every person of full age and sound mind, not a 
married woman, being a resident of this state shall list his 
real estate, and all tangible personal property, subject to 
taxation situated and being in the county in which he re- 
sides. 

Second. He shall list all moneys, credits, bonds, or stocks, 
shares of stock, of joint-stock or other companies (when 
the capital stock of such company is not assessed in this 
state), moneys loaned or invested, annuities, franchises, 
royalties, whether in or out of such county. 

Third. He shall also list all moneys and other personal 
property invested, loaned, or otherwise controlled by him 
as the agent or attorney, or on account of any other per- 
son or persons, company, or corporation whatsoever, and 
all moneys deposited, subject to his order, check, or draft, 
and credits due from, or owing by, any person or persons, 
body corporate or politic. 

Fourth. The property of a minor child shall be listed by 
his guardian ; if he have no guardian, then by the father, 
if living; if not, by the mother, if living; and if neither 
father nor mother be living, by the person having such 
property in charge. 

Fifth. The property of an idiot or lunatic, by his con- 
servator; or, if he has no conservator, by the person hav- 
ing charge of such property. 

Sixth. The property of a wife, by her husband, if of 
sound mind ; if not, by herself. 

Seventh. The property of a person for whose benefit it 
is held in trust, by the trustee ; of the estate of a deceased 
person, by the executor or administrator. 

HR. S. 1876, 7$; 27Ind. 288. 



36 ASSESSMENT OF TAXES. 

If the decedent died after the first day of April, without 
giving in the amount of his taxables, his administrator or 
executor must give in the same as though such property 
had been in his possession on the first day of April. 

Eighth. The property of corporations whose assets are 
in the hands of receivers, by such receivers. 

Ninth. The property of a body politic or corporate, by 
the president or proper agent or officer thereof. 

Tenth. The property of a firm or company, by a partner 
or agent thereof. 

Eleventh. The property of manufacturers, and others in 
the hands of agent, by and in the name of such agent, as 
merchandise. 

Where certain property must be listed. 1 — All real property, 
and merchants' and manufacturers' stock, shall be listed 
and returned for taxation in the county, township, city, or 
town in which it is situated. All other personal property 
except such as is, by express enactment otherwise required, 
shall be listed and assessed in the county, township, city, 
or town in which the owner resides. The capital stock 
and franchises of corporations and persons, except as may 
be otherwise provided in the county, township, city, or 
town in which the principal office or place of business of 
such corporation or person is located in the state, and if 
there be no such principal office or place of business in the 
state, then at the place in this state where such corporation 
or person transacts business. 

When agent of owner must furnish list. 2 — Property, of 
whatever kind, situate or being in any county other than 
that in which the owner or owners thereof, or other per- 
sons required to list the same, resides, except the property 
of such companies as are required to give a statement 
thereof in the township where the principal office of such 
company is kept, and merchants' and manufacturers' stock 
which is required to be listed where the same is situated, 

l \R. S. 1876,77. 2 27Ind. 288. 



ASSESSMENT OF TAXES. 37 

shall be listed in the township where the same is situate, 
by the agents of the owner, or other person having posses- 
sion or charge thereof, unless the owner shall list, or cause 
the same to be otherwise listed in the township where such 
property may be. 

Where property connected with farm is listed, when owner 
lives in another county. — When the owner of live stock or 
other personal property connected with a farm, does not 
reside thereon, the same shall be listed and assessed in the 
township where the farm is situated. If the farm is situ- 
ated in more townships than one, it shall be listed in the 
township in which the principal place of business on such 
farm shall be. 1 

Property in hands of agents, where listed. — The property 
of manufacturers and others, in the hands of agents, shall 
be listed and assessed at the place where the business of 
such agent is carried on. 

When real estate exempt, is contracted to be sold. — When 
real estate is exempt in the hands of the holder of the fee, 
and the same is contracted to be sold, the amount paid 
thereon by the purchaser, with the enhanced value of the 
investment and improvement thereon, until the fee is con- 
veyed, shall be held to be personal property, and listed and 
assessed as such in the place where the land is situated. 2 

Personal property in transitu. — Personal property, while 
passing from one place to another, shall be listed and as- 
sessed in the county, township, city, or town where the 
owner resides. If, however it is intended for a business, it 
shall be listed and assessed at the place where the property 
of such business is required to be listed. 

Nurseries. — The stock of nurseries, growing or otherwise, 
in the hands of nurserymen, shall be listed and assessed as 
merchandise. 

Personal property of bankers, insurance companies, etc., 
where listed. — The personal property of banks, or bankers, 

1 1 R. S. 1876, 77. 2 49 Lid. 272; 53 Ind. GO; but see Acts 1877, 
Reg. Sess., 139. 



38 ASSESSMENT OF TAXES. 

brokers, stock-jobbers, insurance companies, hotels, livery- 
stables, saloons, eating houses, merchants and manufactur- 
ers, ferries, mining companies, and companies not specially 
provided for, shall be listed and assessed in the county, 
township, city, or town, where the business is carried on, 
except such property as shall be liable to assessment else- 
where, in the hands of agents. All persons, companies, 
and corporations in the state, owning steamboats, sailing- 
vessels, wharf-boats, barges, and other water-craft, shall be 
required to list the same for assessment and taxation in the 
county, township, city, or town, in which the same may 
belong, or be enrolled, registered, or licensed, or kept when 
not enrolled, registered, or licensed. 

Gas and coke companies. — The personal property of gas 
and coke companies, except the pipes laid down, shall be 
listed and assessed in the city or town where the principal 
works are located. G-as mains and pipes, laid in roads, 
streets, or alleys, shall be held to he personal property, and 
listed and assessed as such, in the city or town where the 
same are laid. 

Street railroads, turnpikes, etc. — The personal property 
of street railroad, plank road, gravel road, turnpike or 
bridge companies, shall be listed and assessed in the 
county, township, city, or town, where the principal place 
of business is located. The track, road, or bridge, shall be 
held to be personal property, and listed and assessed as 
such, in the county, township, city, or town, where the 
the same is located or laid. 

Stage companies. — The horses, stages, and other personal 
property of stage companies, or persons operating stage 
lines, shall be listed and assessed in the county, township, 
city, or town, where they are usually kept. 

Express and transportation companies. — The personal 
property of express or transportation companies shall be 
listed and assessed in the county, township, city, or town, 
where the same is usually kept. 



ASSESSMENT OF TAXES. 39 



Consignees. — No consignee shall be required to list, for 
taxation, the value of any property, consigned to him, for 
the sole purpose of being stored or forwarded, except to 
the extent of his interest in such property. 

Persons listing property for others. — Persons required to 
list property on behalf of others, shall list it in the same 
place in which they are required to list their own ; but 
they must list it separately from their own, specifying in 
each case the name of the person, estate, company, or cor- 
poration to whom it belongs. 

Bonds, where principal of is exempt. — Persons, for them- 
selves or others, holding bonds or stocks of any kind, the 
principal of which bonds or stocks has been or may here- 
after be exempted from taxation, shall list the amount of 
accrued interest on such bonds, without regard to the time 
when the same is to be paid. 

Money secured by deed. — When a deed for real estate is 
held as security for the payment of a sum of money, such 
sum, so secured, is held to be personal property, and shall 
be listed and assessed as credits. 

Removals. — The owner of personal property, removing 
from one county, township, city, or town to another, be- 
tween the first day of April and the first day of June, 
shall be assessed in either in which he is first called 
upon by the assessor. The owner of personal property 
moving into this state, from another state, between the first 
day of April and the first day of June, shall be listed for 
his poll and the property owned by him, on the first day 
of April of such year, in the county, township, city, or 
town in which he resides. 

If such person has been assessed, and can make it ap- 
pear to the assessor, that he is held for the tax of the cur- 
rent year on the property, in another state, county, town- 
s') ip, city, or town, he shall not be again assessed for said 
y ar. 

Question as to the proper place to list, how determined. — 



40 ASSESSMENT OP TAXES. 

In all questions that may arise as to the proper place to 
list personal property, or where the same cun not be listed 
as required by the statute, if between several places in the 
same county, the place for listing and assessing shall be 
determined and fixed by the county board ; and when be- 
tween different counties, or places in different counties, by 
the auditor of state ; and when fixed in either case shall be 
as binding as if fixed by statute. 

Schedule to be furnished to assessor. — Persons required to 
list personal property shall make out and deliver to the 
assessor, at the time required, a schedule of the numbers, 
amounts, quantity, and quality of all personal property in 
their possession or under their control, required to be 
listed for taxation by them. 1 It shall be the duty of the 
assessor to determine and fix the fair cash value of all items 
of personal property. 

Poll tax. — Every person shall be listed for his poll tax in 
the townshij} where he resides when the enlistment is 
made. 

Enlistment must relate to April first. — Every person must 
be listed in the township where he resides when the en- 
listment is made, for all personal estate owned by him on 
the first day of April of the year in which the enlistment 
is made, including all personal estate in his possession, or 
under his control as trustee, guardian, executor, or admin- 
istrator, and also for all lands by him owned within such 
township, on the first day of April in which the enlist- 
ment is made, and occupied by him or wholly unoccupied, 
including all such real estate owned or held by him as 
trustee. 

Bankers and brokers. 2 — The statute makes the following 
provision in regard to the assessment of bankers and 
brokers : 

Every bank (other than a national bank), banker, bro- 
ker, or stock-jobber, shall, at the time fixed by this act for 

1 1 R. S. 1876, 79; 40 Ind. 353 ; 27 Ind. 288. 2 1R.S. 1876, 87. 



ASSESSMENT OF TAXES. 41 

Ksting personal property, make out and furnish the assessor 
a sworn statement, showing: 

First. The amount of money on hand or in transit. 

Second. The amount of funds in the hands of other 
banks, bankers, brokers, or others, subject to draft. 

Third. The amount of checks or other cash items, the 
amount thereof not being included in either of the pre- 
ceding items. 

Fourth. The amount of bills receivable, discounted or 
purchased, and other credits due or to become due, in- 
cluding accounts receivable and interest accrued but not 
due, and interest due and unpaid. 

Fifth. The amount of bonds and stocks of every kind, 
and shares of capital stock, of joint stock, or other com- 
panies or corporations, held as an investment or any way 
representing assets. 

Sixth. All other property appertaining to said business, 
other than real estate (which real .estate shall be listed and 
assessed as other real estate is listed and assessed under 
this act). 

Seventh. The amount of all deposits made with them by 
other parties. N 

Eighth. The amount of all accounts payable, other than 
current deposit accounts. 

Ninth. The amount of bonds or other securities exempt 
by law from taxation, specifying the amount and kind of 
each, the same being included in the preceding fifth item. 

The aggregate amount of the first, second, and third 
items in said statement shall be listed as moneys. The 
amount of the sixth item shall be listed the same as other 
similar personal property is listed. The aggregate amount 
of the seventh an eighth items shall be deducted from the 
aggregate amount of the fourth item of said statement, 
and the amount of the remainder, if any, shall be listed as 
credits. The aggregate amount of the ninth item shall be 
deducted from the aggregate amount of the fifth item 



42 ASSESSMENT OF TAXES. 

of such statement, and the remainder shall be listed as 
bonds or stocks. 

Officers of chartered bank to furnish statements. 1 — The 
president or cashier of every bank or banking association 
organized under the law of the state or the United States, 
must, in addition to other property required to be listed, 
make out a statement, under oath, showing the number of 
shares comprising the capital stock of such bank, the name 
and residence of each stockholder, with the number of 
shares owned by such stockholders in such bank, the par 
and cash value of each of said shares, and also the par and 
cash value of the entire capital stock of such bank or 
banking association, on the first day of April of the cur- 
rent year, and shall deliver such statement to the county 
auditor in the county wherein such bank or banking asso- 
ciation is located, on or before the first day of May; and 
the county auditor shall deliver to the proper assessor a 
copy of such statement, a,nd such capital stock shall there- 
upon be listed and assessed by the assessor, and return 
thereof made in all respects the same as similar property 
belonging to other corporations and individuals, except 
that it shall be treated as personal property belonging to 
banks or banking associations, under the name of capital 
stock. 1 

Penalty for failure to make statement. — If the president or 
cashier fail to make such return within the time required, 
the county auditor must summon them to appear forthwith 
before him with the books of the bank, and obedience to 
such summons may be enforced and the auditor may exam- 
ine them under oath and make such investigations at the 
expense of the bank as may enable him to obtain the in- 
formation such officers are required to furnish. § 

When banks must retain tax on stock. 2 — It is the duty of! 
the managing officers of every bank to retain so much of 
the dividends due any stockholder as will be necessary to 

1 1 R. S. 1876, 89 ; 48 Ind. 568. 2 1 R. S. 1876, 90. 



ASSESSMENT OF TAXES. 43 

pay the tax levied on their stock until it has been paid, 
and, failing to do so, will be individually liable for the tax. 
The shares of stock of any bank, whether organized under 
the laws of the state or United States, are liable to taxation 
for all purposes, the same as other personal property in the 
same locality. Taxes become a lien on bank stock on the 
first day of April of each year, and the lien will continue 
until the taxes are paid. 

Pawnbrokers. 1 — Every pawnbroker must furnish to the 
assessor, under oath, a statement showing the value of all 
property pledged to and held by him and on hand on the 
first day of April of each year, and taxes must be charged 
to him upon the fair cash value thereof the same as other 
property. 

Every person or company engaged in the business of re- 
ceiving property in pledge, or as security for money or 
other thing advanced to the pledger, is a pawnbroker within 
the meaning of the law. 

Companies and Corporations. 1 — Every banking, bridge, 
express, ferry, gravel road, gas, insurance, manufacturing, 
mining, plank road, savings bank, stage, steamboat, street 
railroad, transportation, turnpike, x and all other companies 
and associations incorporated under the laws of the state 
(other than national banks), must, in addition to other prop- 
erty they are required to be listed, make out and deliver 
to the assessor the amount of its capital stock, setting forth 
particularly : 

First. The name and location of the company or associ- 
tion. 

Second. The amount of capital stock authorized and the 
number of shares into which such capital stock is divided. 

Third. The amount of capital stock paid up. 

Fourth. The market value, or, if no market value, then 
the actual value of the shares of stock. 

Fifth. The total amount of all indebtedness, except the 

4R. S. 1876,88. 



44 ASSESSMENT OF TAXES. 

indebtedness for current expenses, excluding from such ex- 
penses the amount paid for the purchase or improvement 
of property. 

Sixth. — The assessed valuation of all its tangible prop- 
erty. Such schedule shall be made in conformity to such 
instruction and forms as may be prescribed by the auditor 
of state. In all cases of failure or refusal of any person, 
officer, company, or association, to make such return or 
statement, it shall be the duty of the assessor to make such 
return or statement from the best information which he can 
obtain. Such statement shall be scheduled by the assessor, 
and such schedule, with the statement so scheduled, shall 
be returned by the assessor to the county auditor. 

Manufactures. 1 — Every person who purchases, receives or 
holds any kind of personal property for the purpose of 
adding to its value by any process of manufacturing, rec- 
tifying, refining, or by the combination of different mate- 
rials, with a view of making a gain or profit by so doing, 
is a manufacturer, and when he is required to furnish a 
list of his other personal property, must also furnish to the 
assessor a statement of the value of all articles purchased, 
received, or otherwise held for the purpose of being used 
in whole or in part, in any process of manufacturing, com- 
bining, rectifying, or refining including the value of all 
manufactured articles on hand, in actual possession, or else- 
where held for sale, which statement must be verified by 
oath or affirmation. 

Every person owning a manufacturing establishment, 
and every manufacturer, must list as a part of his personal 
property, the value of all engines and machinery, of every 
description, used or designed to be used, in any process of 
refining or manufacturing, except such fixtures as shall 
have been considered as a part of any real estate, and the? 
statement must include tools and implements of every kind 
used or designed to be used for manufacturing purposes. 

HRS. 1876,95. 



ASSESSMENT OF TAXES. 45 

Merchants} — Every person who has in his possession, or 
subject to his control, any personal property within this 
state, with authority to sell it, whether it has been pur- 
chased within or without the state, with a view to profit, or 
which has been consigned to him from anyplace out of the 
state, to be sold in the state, is a merchant, and when he is 
required to list his other personal property he must list, as 
merchandise, all property held or owned by him apper- 
taining to his business as a merchant, and state the value 
thereof, under oath or affirmation, including with the 
amount on hand, in actual possession, all amounts pur- 
chased with a view to retaining the same in possession, and 
to be used in connection with his business, or for profit. 
No consignee is required to list for taxation the value of 
any property which is the product of this state consigned 
to him for sale, or otherwise, from any point in this state, 
nor the value of any property consigned to him from any 
other place, for the sole purpose of being forwarded, if he 
has no interest in the property in either case, nor in any 
profit to be derived from its sale. 

Telegraph companies. — The office furniture and other per- 
sonal property of telegraph companies, shall be listed and 
assessed in the county, township, city, or town where the 
same is used or kept. The capital stock of a foreign tele- 
graph company, owning and operating a line of telegraph 
in this state, can not be assessed for taxation. 2 Such com- 
panies are required to make schedules and return the same 
to the auditor of the state, in the month of April of each 
year, and which must be made in conformity with the 
forms and instructions prescribed by him. The county 
auditor is required to compute and place upon the tax 
duplicate all taxes for which the property of telegraph 
companies are liable. 

Railroad companies? — Every person, company, or corpor- 

MR,S. 1876, 94. 2 47 Ind. 511; 1 R. S. 1876, 93. 

3 1R. S. 1876,90. 



46 ASSESSMENT OF TAXES. 

ation owning, operating, or constructing a railroad in this 
state, must return sworn lists or schedules to the county 
auditor of the respective counties through which the rail- 
road may be located, showing the property held for right 
of way, and the length of the main, and all side and sec- 
ond tracks and turnouts, in such county, and in each city 
or town in the county through or into which the road may 
run, and describing each tract of land, other than a city or 
town lot, through which the road may run, in accordance 
with the United States surveys, giving the width and length 
of the strip of land held in each tract, and the number of 
acres thereof. They shall also state the value of improve- 
ments and stations located on the right of way. JSTew com- 
panies must make such statements in April next after 
the location of their roads. When such statement has 
been once made, it will not be necessary to report the de- 
scription, unless directed so to do by the county board; 
but the company shall, during the month of April, annu- 
ally, report the value of such property, describing it as a 
strip of land extending on each side of such railroad track, 
and embracing the same, together with all the stations and 
improvements thereon, commencing at a point where such 
railroad track crosses the boundary line in entering the 
county, township, city, or town, and extending to the 
point where such track crosses the boundary line leaving 
such county, township, city, or town, to the point of ter- 
mination of the same, as the case maybe ; containing 

acres, more or less, and noting all additions or changes in 
such right of way as shall have occurred. 

Railroad track, how assessed. 1 — The right of way, includ- 
ing the superstructures of the main track, side or second 
track, and turnouts, and the stations of the railroad com- 
pany on such right of way, is held to be real estate, for the 
purpose of taxation, and shall be listed and valued as 
" railroad track " and the value of such track must be listed 

1 1 R. S. 1876, 91. 



ASSESSMENT OF TAXES. 47 

and taxed in the several counties, townships, cities, or 
towns, in the proportion that the length of the main track 
in such county, township, city, or town bears the whole 
length of the road in the state, except the value of the 
side or second track, and all turnouts, and all station- 
houses, depots, machine-shops, or other buildings belong- 
ing to the road which must be taxed in the county, town- 
ship, city, or town where located. 

Rolling stock. — A list or schedule must be returned in the 
month of April of each year, containing a correct detailed 
inventor}^ of all the rolling stock belonging to such com- 
pany, and which shall distinctly set forth the number of 
locomotives of all classes, passenger cars, and all other 
kinds of cars of every name and description. The mov- 
able property of railroad companies is denominated " roll- 
ing stock," for the purposes of taxation, and is held to be 
personal property. The rolling stock shall be listed and 
taxed in the several counties, townships, cities, and towns 
in the proportion that the main track used or operated in 
such county, township, city, or town, bears to the length 
of the main track used or operated in such county, town- 
ship, city, or town, bears to the whole length of the road 
used or operated by such person, company, or corporation, 
whether owned or leased by him or them, in whole or in 
part. The schedule shall set forth the number of miles of 
main track on which the rolling stock is used in the state, 
and the number of miles of main track on which said roll- 
ing stock is used elsewhere. 

Other property, how assessed. — The tools, and materials 
for repairs, and all other personal property of any railroad 
except " rolling stock," must be listed and assessed in the 
county, township, city, or town wherever the same may bo 
on the first day of April ; also, real estate, including the 
stations and other buildings and structures thereon, other 
than that denominated "railroad track," belonging to any 
railroad, shall be listed as lands or lots, as the case may be, 



48 ASSESSMENT OF TAXES. 

in the county, township, city, or town where the same are 
located. 

The county auditor shall return to the assessor of the 
proper township, city, or town, as the case may require, a 
copy of the schedule or list of the real estate (other than 
"railroad track") of, and the personal property (other 
than "rolling stock,") pertaining to the railroad; and such 
real and personal property shall be assessed by the assessor. 
Such property shall be treated in all respects, in regard to 
assessments and equalization, the same as other similar 
property belonging to individuals, except that it shall be 
treated as property belonging to railroads, under the 
terms "lands," "lots," and personal property. 

Proceeding, where company fails to return schedule. — If 
any person, company, or corporation owning or operating a 
railroad shall neglect to return to the county auditor the 
schedules required by the statute, the assessor must list 
and assess the property which should have been returned, 
the same as other property, and if such person, corpora- 
tion, or company fail to make the return to the auditor of 
the state required by the statute, tbe auditor and assessor 
must render him such assistance as he may require in ob- 
taining the necessary information. 

Penalty for giving false list. — If any person, company, or 
corporation shall give a false or fraudulent statement, list, 
or schedule, or fail, or refuse to give to the assessor, when 
called on for that purpose, a list of the taxable personal 
property which he is required by law to list, such person, 
company, or corporation will be liable to a penalty of not 
less than ten dollars, nor more than two thousand dollars, 
which may be recovered in a suit in the name of the State 
of Indiana, on the complaint of any person ; and, when 
collected, the penalty must be paid into the county treasury. 
If any person shall willfully make any false list or sched- 
ule, under oath, such person will, in addition to such pen- 
alty, be liable as in case of perjury. 



ASSESSMENT OF TAXES. 49 

Return of assessors. 1 — Each assessor must, on or before 
the first Monday in June of each year, make out and de- 
liver to the auditor of his county, in tabular form, and 
alphabetical order, lists of the names of the several per- 
sons, companies, and corporations, in whose name any per- 
sonal property, moneys, credits, or other taxables, have 
been listed, setting opposite each name on the list, the ag- 
gregate value of the property of each person, and placing 
the names of persons residing in incorporated towns, in a 
separate list from those residing outside of such towns, and 
the column must be accurately added up, and if any persons 
have refused to list, or take the oath or affirmation, it must 
be so entered in the proper column. If any persons have 
been unable to list, because of absence or sickness, such 
fact must be noted, and the assessor must at the same time, 
deliver to the auditor all the statements of property he 
has received from persons required to make the same, ar- 
ranged in alphabetical order, corresponding with his lists. 
When making assessments of personal property, it is the 
duty of each assessor to correct all errors of assessments 
of real estate which he may discover in the assessor's books, 
either in the name of the person to whom the property 
is assessed, in consequence of change of ownership or oth- 
erwise, or in the description of the property, and make the 
proper return to the auditor. 

List of property for statistical purposes. 2 — It is also made 
the duty of each assessor, at the time of assessing personal 
property, to set down upon the blanks furnished him, in a 
column headed " for statistical purposes," the number of 
domestic and farm animals of all kinds, the quantities of 
farm and manufactured products, and the number of bush- 
els of coal mined, and such other items of product, as may 
be directed by the auditor of state, and make return thereof 
as in case of taxables assessed by him. And he must also 
make and return in like manner, a list of all deaf and 

HE. S. 1876, 105. 2 Ibid, 106. 



50 ASSESSMENT OF TAXES. 

dumb and blind persons, with name and sex of each, the 
name of father and mother, or guardian i and post office 
address. 

Assessors may appoint deputies. 1 — Every assessor may dis- 
charge the duties of his office in person, or may appoint 
one or more deputies, who, before proceeding to discharge 
the duties of their office, must take the same oath required 
of their principals. Assessors will be responsible for all 
the official acts of their deputies. 

Compensation of assessors. 2 — Township assessors are al- 
lowed two dollars and fifty cents per day for their services. 
In estimating the number of days fractions of a day less 
than one half shall not be counted, and parts of a day 
more than one half will be counted as a whole day. 

UR. S. 1876,418. 2 Ibid, 477. 



BONDS AND OATHS. 51 



CHAPTER IV. 

BONDS AND OATHS. 1 

What officers must take oath and give bond. — Ail township 
officers, before entering upon their official duties, must take 
an oath to support the constitution of the United States 
and of this state, and must also execute a bond, payable to 
the State of Indiana, conditioned for the faithful perform- 
ance of their duties. 

Supervisors of highways must take an oath before as- 
suming their official duties, but are not required to execute 
a bond. 

Copy of oath to be deposited. — The oath must be indorsed 
on the commission or certificate and signed by the officer, 
and must be certified to by the officer before whom such 
oath is taken, who shall deliver to the person taking such 
oath a certified copy thereof. 

Copy of oath to be filed. — Officers appointed by the board 
of commissioners, and such township officers as maybe re- 
quired to do so by such board (except justices and consta- 
bles), with the county auditor. 

Justices of the peace and constables must file a copy of 
their oaths in the office of the clerk of the circuit court. 

How bonds must be executed. — All official bonds must be 
executed by the officer and one or more freehold sureties, 
and a copy of such bond, legally certified, shall be received 
as evidence, and suit maintained thereon as on the original. 
Before any official bond shall be accepted or approved, its 
execution must be duly acknowledged by the principal and 
sureties before some officer authorized to take the acknowl- 
edgment of deeds, which acknowledgment must be duly 
certified upon the bond by the officer taking the same. 

n R. S. 1876, 189. 



52 BONDS AND OATHS. 



Justices of the peace and constables must file their bonds 
with the clerk of the circuit court, and assessors and town- 
ship trustees with the county auditor. 

Not void for certain defects. — All official bonds are made 
payable to the State of Indiana, and recoveries may be had 
thereon until the penalty is exhausted, and no bond will be 
void because of defects in the form or in the approval or 
filing thereof. 

When new bond may be required. — When the sureties on 
an official bond remove from the state or become insuffi- 
cient, or where the penalty of the bond has become inade- 
quate to secure the faithful performance of official duty, by 
reason of the diminution thereof by suits ; or by the en- 
actment of laws increasing the liability upon such bond, or 
other sufficient cause, the officer will be required to execute 
a new bond. 

The clerk of the circuit court, upon his own knowledge, 
or where an affidavit showing any of such causes is filed 
with him, may issue a writ requiring such officer to appear 
before the judge of the circuit court, at the court house, on 
a day named, ten days after the service of such process, and 
such judge will require a new bond to be given or dismiss 
the proceeding as the facts may warrant, and an appeal 
will lie from his decision to the circuit court by either party. 
New sureties may sign the old bond without the formality 
of executing a new one. 

Liability of sureties where new bond is given. — Where a new 
bond is given, the sureties on the old bond will be liable for 
the acts of the officer up to the date of the new bond, and 
the sureties on the new bond will only be liable for the acts 
of the officer from the date thereof. 

Sureties may be released. — When any surety upon an of- 
ficial bond wishes to be released from further liability there- 
on, he must present a petition to the circuit judge, upon 
which the clerk may issue a summons requiring the officer 



BONDS AND OATHS. 53 



to appear before the judge and give additional bond and 
sureties. The officer is entitled to ten days' notice, and 
must, at the hearing, furnish a new bond, or the office must 
be declared vacant. In case a new bond is given, the pe- 
titioner will be liable for the costs. When a surety is re- 
leased on his petition the statute requires a new bond to be 
given, and it will not be sufficient to require additional 
sureties on the old one. 



54 CONSTABLES. 



CHAPTER V. 
CONSTABLES. 

Election of — Constables are required to be elected at the 
April election, held in each township of the state, each al- 
ternate year, and as many are required to be elected in 
each township as there are justices in such township. 1 By 
an oversight, the statute now in force provides that con- 
stables shall hold their office for one year only, while it is 
provided that they shall be elected biennially. But as con- 
stables hold their offiee until their successors are elected 
and qualified, they practically hold for two years. 

Must give bond? — Constables are required to give an offi- 
cial bond, in the sum of one thousand dollars, conditioned 
for the faithful performance of their duties according to 
law, which bond must be approved by the clerk of the- 
circuit court. 

Duties of constables? — It is the duty of a constable: 

First. To serve all process legally in his hands, accord- 
ing to the command thereof, and to make legal return of 
the same. 

Second. To attend all trials in which he may have served 
the process, preserve order, and enforce all legal orders of 
the justice at the trial. 

Third. To note on all writs, except subpenas, the time 
of receiving the same, and all acts done by him in obedi- 
ence to the command thereof. 

Fourth. To pay over to the proper party, or to the 
proper justice, all money collected by bim, by virtue of 
any writ. 

Fifth. To act as conservator of the peace, and arrest and 

1 Acts 1877, Reg. Sess., 58. 2 2 R. S. 1876, 648. 

3 Ibid, 648. 



CONSTABLES. . 55 



take forthwith before the nearest justice, all persons who 
violate the law in his presence, and then charge them with 
such violation by his affidavit. 1 

Sixth. To levy every execution and make at least one 
effort to sell the property levied on, within one month after 
such execution comes to his hands, if property can be 
found, unless otherwise directed by the plaintiff, his agent, 
or attorney. 

Seventh. To faithfully and diligently discharge all other 
duties, imposed on him by law. 

A constable must not make return of an execution, that 
no property can be found to satisfy the same, until he has 
demanded such property, at the residence of the defendant, 
if he have one in the county. 2 

His duty ivhen going out of office. — Every constable on 
going out of office, shall deliver to his successor all writs 
in his hands, with his proceedings indorsed thereon, and 
all property levied on, and remaining unsold, and all deliv- 
ery bonds, and shall take such successor's receipts for the 
same, including in different receipts, the process from dif- 
ferent justices, and must return ^uch receipts to the proper 
justices, who must record the same on their docket, and 
carefully preserve the originals, and they shall if required, 
give to such constables a certified copy of such receipts. 

In case of the death of a constable, his executor or ad- 
ministrator must make such delivery to his successor, or if 
none be elected or appointed, then to some other constable 
of the township, and shall make the same return thereof 
to the justices. If no executor or administrator has been 
appointed, such delivery may be made by the widow or 
next of kin. 

1 When a constable arrests a person violating the law in his pres- 
ence, without warrant, he must do so immediately. 3 Ind. 475. And 
in such case he can only detain him a reasonable time. Id. 479. 

2 After one full examination for property, without effect, he may at 
once return the execution. 5 Blackf. 561. 



56 CONSTABLES. 



Territorial limits within which they may act. — Constables 
in the discharge of their duties, have power to act throughout 
their respective counties, unless specially restrained by law. 

May call for assistance in discharge of duties. Whenever 
necessary, constables may call upon any number of persons 
to assist them in the discbarge of their duties, and persons 
so called on will, in case of refusal be subject to a fine of 
not exceeding one hundred dollars, unless a valid excuse 
for such refusal can be shown. 

Duties in case of commitment of prisoners. — Whenever a 
constable shall commit to jail any prisoner in his custody, 
he must leave with the jailer the writ by authority of 
which he commits such prisoners, and the jailer shall give 
him a receipt therefor, containing at length a copy of such 
writ. 1 

May arrest fugitives from justice. — A constable may, upon 
a proper warrant, arrest any fugitive from justice in any 
county where he may be found ; but, if such fugitive re- 
quest it, the constable must not remove him from the 
county without taking him before a circuit judge, and giv- 
ing him time to make application for a writ of habeas cor- 
pus, and to have a hearing thereof. Constables must serve 
warrants issued by judges and justices of the peace, and 
make return thereof in cases of fugitives from justice from 
other counties and states. 

Liable on bond for failure of duty. — If a constable make 
a false return of any writ, or shall fail to make return at 
the return day thereof, or shall fail to discbarge any of the 
duties imposed on him by law, he shall, with his sureties, 
be liable on his bond to the person injured, to the extent 
of the injury sustained, with ten per cent, damages there- 
on. 

Liability for failing to pay over money. — If a constable 
fail to pay over to the proper person, on demand, or to the 
proper justice, within one month after the receipt of the 

1 2 R. S. 1876, 651. 



CONSTABLES. 57 



ame, any money collected by him by virtue of his offices, 
he shall, with his sureties, be liable on his bond to the per- 
son injured, for such money, and twenty-five per cent, dam- 
age on the amount wrongfully withheld. 

The meaning of this provision of the statute, seems to 
be that if the person to whom the money collected belongs, 
his agent or attorney, shall make demand, he must pay 
over, forthwith, and that he is bound to pay it to the proper 
justice within one month after he has collected the money, 
without any demand. 

Duties in attachment cases. — "When a writ of attachment 
has been placed in his hands, against the goods and chat- 
tels of a defendant, the constable must, with the assistance 
of a disinterested and credible householder of the township, 
attach the defendant's property, subject to execution, and 
make an inventory and appraisement thereof, and return 
the same with the order of attachment, which he must do 
within ten days, and his doings must be indorsed on the 
writ. The justice of the peace, before whom the attach- 
ment proceeding is pending, is authorized to allow the con- 
stable the necessary expenses of keeping the attached prop- 
erty, to be taxed with the costs. 

Summons for garnishee. — The constable will serve the 
summons for a garnishee, and make return thereof, in the 
same manner as a summons is served and returned in 
other cases. 

Constables' sales. 1 — All sales by constables must be at pub- 
lic auction in the township where the goods are seized, be- 
tween the hours of ten in the forenoon and five in the af- 
ternoon, and ten days' notice must be given by the con- 
stable of the time and place of sale, by posting up written 
notices, in three public places in such township, and he can 
not become a purchaser, either directly or indirectly, at 
such sale. 

Process, where served, etc. — Executions, writs of attach- 



1 2 R. S. 1876, 632. 



58 CONSTABLES. 



merit, and writs of replevin, may be served throughout the 
county, and executions must be made returnable in six 
months, but may be returned by the constable sooner, if 
satisfied, or if no property can be found to levy upon. 

The statute prohibiting a constable from purchasing 
judgments upon the docket of any justice of his township 
has been held void by the supreme court, for the reason 
that the provision was placed in the justices' act instead 
of the act defining the duties of constables. 

A constable can not act as agent or attorney for a party 
in a justice's court in his township, and perhaps the stat- 
ute should be construed to exclude a constable from appear- 
ing as agent or attorney before any justice of the county. 

May take delivery bonds. — When constable levy on goods 
by virtue of an execution placed in their hands, they must 
permit the defendant to retain the possession thereof if a 
delivery bond be executed. The constable will be respon- 
sible for the sufficiency of the bond and the solvency of 
the sureties. 

Duties in relation to coroners' inquests. — When the cor- 
oner shall deem it necessary to hold an inquest, he is 
authorized to issue his warrant to a constable of the town- 
ship where the dead body is lying, requiring him to sum- 
mon a jury of six men of such a township, to appear be- 
fore the coroner at the time and place named in the war- 
rant, and such constable must, at once, make service 
thereof, and then immediately repair to the place where 
the dead body is, and make return of the warrant, with his 
proceedings thereon, to the coroner who issued the same. 



FORMS. 

The statute provides that the following forms will be suf- 
ficient in all cases to which they are applicable, and they 
will apply to nearly all cases that will arise in the discharge 
of the duties of a constable. 



CONSTABLES. 59 



Indorsement and Keturn op Summons 
January 2, 1877. Writ came to band. 

January 3, 1877. Served the within writ by reading the 
same to defendant [or, by copy left at his last usual place 
of residence, as the case may be]. Or, if the defendant is 
not found, as follows: This writ is not served, the defend- 
ant not being found, and having no last usual place of res- 
idence in my county. 

John Smith, 

January 10, 1877. Constable. 

Keturn to a Capias ad Eespondendum. 

January 10, 1877. I have the defendant in custody, in 
obedience to this writ. 

Or, as the case may be: The defendant can not be found 
in my county. 

John Smith, 

Constable. 

Eeturn to a Writ on Complaint for the Wrongful 
Taking or Detention op Property. 

January 10, 1877. I have executed the within writ, by 
seizing the property therein named, and delivering the 
same to the plaintiff; and, on the 4th of January. 1877, 
served this writ on the defendant by reading [or, by copy 
thereof left at his last usual place of residence, as the case 
may be]. 

John Smith, 

Constable. 
Eeturns on Writs op Fieri Facias. 

January 10,1877. I have visited the residence of the 
defendant in this writ, and can find no property there, or 
elsewhere, subject to execution, to levy upon. 

John Smith, 

Constable. 



60 CONSTABLES. 



Or, if property be levied upon, and not sold, as follows: 

January 10, 1877. In obedience to the command of this 
writ, I this day levied upon one bureau and six chairs, and 
took the same into possession. 

January 25, 1877. Caused the property levied on to be 
appraised by Job Hayes, John Stiles, and John Doe, who 
appraised said bureau at ten dollars, and said chairs at fifty 
cents each, which appraisement is herewith returned. 

February 10, 1877. Offered the property levied on, for 
sale at auction, but no person bidding therefor the proper 
amount, the same was not sold. 

February 11, 1877. Defendant, with Thomas Jones as 
his surety, executed delivery bond for the property levied 
on, and the same was delivered to him ; and said bond is 
herewith returned ; and no other execution of this writ 
has been had. 

Eeturned this first of April, 1877. 

John Smith, 

Constable. 
If the property was sold, change as follows: 

February 10, 1877. Property levied on sold, pursuant to 
notice, at auction. Henry Smith purchased the bureau at 
ten dollars, and John Watkins purchased the chairs at 
three dollars; and no other property of the defendant, 
subject to execution, can be found in my county [or, if fur- 
ther levy and sale, or offer to sell, has been made, state the 
facts accordingly]. 

John Smith, 

Constable. 
Keturn of a State Warrant. 

January 2, 1877. I have the defendant named in the 
within writ in custody. 

John Smith, 

Constable, 



CONSTABLES. 61 



Delivery Bond. 

We, Eichard Eoe and James Smith, acknowledge our- 
selves bound to John Doe, in the sum of fifty dollars. 

Witness our hands and seals, this 3d day of January, 
1877. 

Whereas, John Smith, constable, has levied a fieri facias, 
issued by Eichard Stiles, justice, in favor of said John 
Doe, against said Eichard Eoe, on one horse, of the value 
of tweniy-five dollars, as the property of said Eichard Eoe, 
and is about to return said horse to be kept by said Eich- 
ard Eoe, until demanded : Now, if said Eichard Eoe shall, 
when requested by said constable, or any other constable, 
having said fieri facias, or any alias or pluries fieri facias 
on the same judgment in his hands, have said horse at the 
time and place that may be fixed for the sale thereof, and 
shall then and there return said horse to any such con- 
stable, then the above bond shall be void ; else in force. 

Eichard Eoe, 

Test : James Smith. 

John Smith, 

Constable. 



62 ELECTIONS. 



CHAPTER VI. 

ELECTIONS. 

Presidential eleetion. 1 — The election for presidential elec- 
tors, is required to be held on the Tuesday next after the 
first Monday in November, of every fourth year, counting 
from the year 1852, which election is governed, in all re- 
spects, by the law governing general elections in this state. 
The board of judges, in the several townships and pre- 
cincts, must make out certificates and sign the same, certi- 
fying, in words, the number of votes that each person re- 
ceived for elector, which must be attested by the clerks, 
sealed in the presence of the judges, and then placed in the 
hands of one of such judges, who must, on the ensuing 
Thursday, deliver it to the clerk of the circuit court of the 
county, or, in his absence, to his deputy, and, in the ab- 
sence of both, to the sheriff. The officer receiving such 
certificate shall, in the presence of the judges in attend- 
ance, between the hours of twelve and six of the same day, 
compare the different returns, and make out, in words, a 
certificate of the number of votes each candidate for elector 
received in the county, which certificate shall be signed by 
the clerk, his deputy, or the sheriff officiating, and be 
sealed with the seal of the circuit court of the county, and 
shall be, by such officer, delivered to the marshal appointed 
to convey the same to the capital of the state. 

When state election shall be held. 2 — A general election is 
held on the second Tuesday in October in each second 
year, counting from the year 1870, for all officers to be 
chosen by the voters of the state, except township officers, 
and at such election all offices, except township offices, 

1 1 R. S. 1876, 684. 2 1 R. S. 1876, 436. 



ELECTIONS. 63 



which are vacant, or which will become vacant before the 
next general election, must be filled. 

Township elections. 1 — A township election is held on the 
first Monday in April of each second year, beginning with 
the year 1878, at which ail existing vacancies in township 
offices, or which will become vacant before the next town- 
ship election, must be filled. 

County commissioners must establish precincts and desig- 
nate places of voting. — The board of commissioners of each 
county must designate places of holding elections and es- 
tablish precincts, and such precincts must be described 
by accurate boundaries. 2 

At least one place of voting must be designated in each 
township, and every township in which there is but one 
place of voting constitutes a precinct. Each township 
constitutes at least one precinct ; but when public conve- 
nience requires it, a township may be divided into two or 
more precincts. There can be but one voting place in a 
precinct. The county commissioners may change the 
boundaries of any precinct in their respective counties, 
and may divide a precinct into two or more precincts, or 
may consolidate two or more precincts into one, and may 
change the place of voting in any precinct, when the pub- 
lic good requires it; but no such change, division, or con- 
solidation shall be made after the June session of the 
board next preceding any election, and the action of the 
board will not be valid unless due notice of such change, 
division, or consolidation be given at least one month 
before any election, either by publication in the newspapers 
having the largest circulation in the county, or by posters 
set up in four of the most public places in the precinct. 
At the time of making the change the board should, by a 
proper order entered upon their record, direct how the no- 
tice shall be given. 

Township trustees to be inspectors of elections. — Township 

1 Acts 1877, Reg. Sess., 58. 2 See Acts 1877, Special Session, 38. 



64 ELECTIONS. 



trustees, in their respective townships, by virtue of their 
office, are inspectors of elections in the precincts in which 
they reside, and must, prior to the opening of the polls in 
their respective precincts, appoint as judges two qualified 
voters of such precinct, who shall have been freeholders 
and resident householders in such precinct for at least one 
year next preceding such election, and who shall be mem- 
bers of the two different political parties casting the high- 
est number of votes at the next preceding election in such 
precinct, if there are different political parties in the pre- 
cinct. No person can be appointed to sit on any board 
of elections who has anything of value bet or wagered on 
the result of any such election, or who is a candidate to be 
voted for at such election. 

WJien commissioners must appoint inspectors. — When the 
board of commissioners designate more than one precinct 
in any township they must, at the June term next pre- 
ceding any election, appoint in each additional precinct, as 
inspector of such election, a qualified voter thereof, and 
who shall have been a resident freeholder and householder 
in such precinct for at least one year next preceding such 
election, and may fill any vacancies that may occur in such 
office. 

The inspector so appointed must perform the same 
duties in regard to elections and in the same manner re- 
quired of trustees acting as such . The judges and in- 
spector shall constitute the board of election, of which the 
inspector will be chairman. 

Voting precincts in cities and towns. — In city and town 
elections, each ward constitutes a precinct, and the statute 
confers on the common council of cities, and the trustees 
of incorporated towns, the power to make such changes in 
the places of holding elections, and in the boundaries of 
precincts within the limits of such cities and towns, as 
public convenience may require: but no such changes or 
divisions can be made, without giving due notice at least 



ELECTIONS. 65 



one month before any election, by publication in the news- 
paper having the largest circulation in the county, in which 
such city or town is situated, or by posters put up in four 
of the most public places in the precinct, for tbe same 
period of time. The statute provides further, that the city 
council or town trustees shall appoint three qualified voters 
of each precinct, one to act as inspector, and two as judges 
of elections, who shall have been freeholders and resident 
householders in such precinct for at least one year next 
preceding any election at which they may officiate. 

The language used in the statute is, that such inspector 
and judges shall be appointed according to the regulation 
"hereinafter" specified; but as there is nothing upon the 
subject in the subsequent sections of the act, the legislature 
doubtless intended to use the word " hereinbefore," and it 
must have had in view the antecedent provisions of the 
statute, requiring the judges to be selected from opposite 
political parties. 

Board to appoint clerks. The board of election must then 
appoint two clerks, who are qualified voters of such pre- 
cinct, observing the same rule as to their politcal predilec- 
tions, as is provided by law in the appointment of judges. 

Voters may appoint when inspector does not appear. — Each 
inspector and judge of elections, shall attend at the place 
of holding elections in his township, or precinct, at or be- 
fore eight o'clock in the morning of the day of elections, 
and should the inspector not appear at that hour, then the 
voters of such township, or precinct, who may be present, 
may appoint an inspector, who will at once appoint judges, 
and the judges will select two clerks. 

Inspector and judges and clerks must take oath. — Before 
any election shall be opened the inspector and judges shall 
each take an oath, as follows: 

"You do solemnly swear that you will support the con- 
stitution of the United States and of the State of Indiana, 
and that you will faithfully and impartially discharge tho 



ELECTIONS. 



duties assigned by law ; that yon will not knowingly per- 
mit any person to vote who is not qualified, and that you 
will not knowingly refuse the vote of any qualified elector, 
or cause any delay to persons offering to vote, further than 
is necessary to procure satisfactory information of the qual- 
ifications of such person as an elector." If no person is 
present authorized to administer oaths, the inspector will 
administer the oath to the judges, and then one of the 
judges to the inspector, and the inspector must then, before 
any votes are received, swear the clerks to faithfully dis- 
charge their duties according to law, and, after the organ- 
ization of the board, may administer all necessary oaths 
which may be required in the discharge of the duties of the 
board. A majority of the board of judges may fill any va- 
cancies occurring in the board or office of clerk. Great 
care should be taken by inspectors in the selection of judges, 
as well as by the board in the appointment of clerks, to se- 
cure persons of competent education and the requisite busi- 
ness qualifications. 

- Opening of polls to be proclaimed. — Before any ballots are 
received the board of judges must cause it to be proclaimed 
that the election is opened. 

Blank forms to be furnished to inspectors. — It is made the 
duty of the auditors of each county to make out and de- 
liver to the inspectors of the several election precincts of 
their respective counties, at least ten da} T s previous to any 
election, a suitable number of blank forms of poll-books, 
containing one column headed " names of voters," and an- 
other headed " number of votes ; " and also forms of election 
returns, with proj)er captions and forms of certificates and 
tally papers necessary to be used in all elections. 

Ballot boxes. — The county commissioners must furnish to 
each inspector a ballot box in which ballots are to be de-j 
posited as they are received during the election. Inspect- 
ors are charged with the duty of taking care of ballot- 



ELECTIONS. 67 



boxes, and, on going out of office, must deliver them over 
to their successor. 

Each box must be provided with a sufficient lock, and 
must be locked before the opening of the election, and the 
key must be kept by one of the judges and the box must 
not be opened until the board is ready to commence count- 
ing the vote. Each box must have an opening in the lid 
sufficient to admit a single ballot at a time, with a slide in- 
side to close the same. 

When elections shall be opened and closed. — The election 
must be opened between the hours of eight and ten o'clock 
in the forenoon, and continue open until four o'clock in the 
afternoon, after which the board may close the election 
when all the electors have voted or have had an opportu- 
nity of voting, or when fifteen minutes have passed without 
a vote having been tendered ; but the poll shall not be kept 
open after six o'clock, and the board must continue in ses- 
sion, without any adjournment or recess, at the place of 
election, from the time the polls are opened until all the 
votes cast have been canvassed and the result publicly pro- 
claimed. 

Party or candidate may have a representative at counting 
of votes. — Any political party having a candidate or candi- 
dates, to be voted for at any election, may be represented 
by two qualified voters of th e precinct, who will be entitled to 
be in the room where the votes are being counted, and such 
persons will have the right to remonstrate against any fraud, 
or irregularity that may occur. They must, however, con- 
duct themselves in a quiet, orderly manner, and must not 
unnecessarily interrupt the board in the discharge of its 
duties. They can not perform any duty, except to observe 
the counting of votes as witnesses, and remonstrate 
against any irregularity, and having done so, must permit 
the board to proceed with the discharge of its official duties, 
and they can not be present until the board is ready to be- 
gin counting. Such persons may be chosen by the central 



68 ELECTIONS. 



committee, representing such party in the county, or town- 
ship, in which the precinct is situated, or by the candidates 
to be voted for, or a majority of them, or by the voters of 
the respective parties entitled to vote in such precinct. 

Description of tickets. — All ballots shall contain the 
name of the person for whom the elector intends to vote, 
written or printed thereon, and shall also designate the 
office to which each person so named is intended by him to 
be chosen. All ballots are required to be written or 
printed on plain white paper, without any distinguishing 
marks or other embellishment thereon, except the name of 
the candidates and the office for which they are voted for 
and inspectors are required to refuse to receive all ballots 
of every other description. 

The supreme court has held, however, that inspectors 
will not be authorized to reject a ballot simply because it 
has a party name printed on the face thereof. Any elector 
may write his name on the back of his ticket if he wishes 
to do so. 1 

How votes shall be received. — When a person offers to vote, 
the inspector must pronounce his name in an audible voice, 
and if there be no objection made, he shall receive the 
ballot, and, in the presence of the other judges, put the 
same unopened into the ballot-box, when the name of the 
voter shall be again distinctly repeated by one of the other 
judges in the presence of the clerks, and the name of each 
elector as he votes, shall be entered and numbered by such 
clerks in the column of their poll lists headed " names of 
voters." 

Challenge of vote. — Any person offering to vote, may be 
challenged by any qualified voter in such precinct, and if 
the person so challenged insists upon voting, and if the chal- 
lenge be not withdrawn, the inspector of such election, or! 
one of the judges thereof, shall administer to him, if he 



claim to be a citizen of the United States the following oath : 
*29 Ind. 308; 35 Ind. 275; 39 Ind. 363. 



ELECTIONS. 69 



Citizen Voter's Oath. 

" You do swear (or affirm) that you are a citizen of the 
United States, that you are over twenty-one years of age, 
to the best of your information and belief, that you have 
been a bona fide resident of this state for six months, im- 
mediately preceding this election, that you are now a bona 
fide resident of this precinct, that you are generally known 
by the name in which you now desire to vote, and that 
you have not voted and will not vote in any other precinct 
at this election." 

If such person does not claim to be a citizen of the 
United States, the inspector of such elections, or one of 
the judges thereof shall administer to him the following 
oath : 

Oath of Yoter who is not a Citizen. 

"You do swear (or affirm) that you have resided in the 
United States one year, and have declared your intention 
to become a citizen thereof, in conformity with the laws 
thereof, that you are over twenty- one years of age to the 
best of your information and belief, that you have been a 
bona fide resident of this state for six months immediately 
preceding this election, that you are now a bona fide resident 
of this precinct, that you are generally known b}^ the 
name in which you now desire to vote, and that you have 
not voted and will not vote in any other precinct at this 
election. 

In addition to the oaths of the persons whose votes are 
challenged, whether they claim to be citizens or not, the 
following oath or affirmation of some qualified voter in 
such precinct, who has been a freeholder and resident 
householder in such precinct, for at least one year next pre- 
ceding such election, shall be required : 



70 ELECTIONS. 



Freeholder's Oath. 

You do swear [or affirm] that you are a qualified voter 
in this precinct, that you have been a freeholder and resi- 
dent householder in this precinct for one year next pre- 
ceding this election, and that [name of voter], who now 
desires to vote, has resided in this state for six months, im- 
mediately preceding this election, and is now a bona fide 
resident of this precinct. 

Oath must be signed in presence of the board. — The stat- 
ute requires that such oaths shall be written or printed, 
and be S'gned by the persons making them in the presence 
of the board, and that some member of such board shall 
administer the oath, and affix his jurat thereto, and the af- 
fidavit must be attached to, and be returned with, the poll 
lists to the clerk of the circuit court. 

When these affidavits arc made, it is the duty of the 
board to permit the person to vote without further evi- 
dence. If, however, the voter refuses to take the oath, the 
board may swear and examine other witnesses, and if sat- 
isfied from such testimony that the person offering to 
vote has the proper qualifications, his vote may be received. 

IVJio are legal voters.— All male citizens of the United 
States, of the age of twenty-one years and upward, who 
have resided in the state during the six months immedi- 
ately preceding the election, and every male person of foreign 
birth, of same age, who shall have resided in the United 
States one year, and in the state for six months imme- 
diately preceding the election, and shall have declared their 
intention to become a citizen of the United States, con- 
formably to the laws thereof, upon the subject of naturali- 
zation, shail be entitled to vote in the township or precinct 
where they reside. 

Persons in the miliary or naval service not entitled to vote. — 
No soldier, seaman, or marine, in the army or navy of the 



ELECTIONS. 71 



United States, or of their allies, shall be deemed to have 
acquired a residence in the state in consequence of having 
been stationed therein, and no such soldier, seaman, or ma- 
rine has the right to vote. 1 

Conviction of infamous crime.— No person shall be enti- 
tled to vote who has been convicted of an infamous crime, 
unless such conviction has been legally reversed or such 
person has been pardoned and legally restored to the 
rights of an elector by such pardon, or unless the period 
of his disfranchisement has expired. 

Treason, murder, rape, arson, burglarly, robbery, man- 
stealing, forgery, and perjury are, by statute, made infa- 
mous crimes. The courts may also adjudge disfranchisement 
as a part of the penalty for any of the following offenses: — 
larceny, receiving stolen goods, altering marks of animals, 
falsely personating another, keeping gaming apparatus, 
being a professional gambler, bribery, or for any violation of 
the act of March 8, 1873, for the protection of the ballot-box. 

Challenge on account of conviction of crime. — If the vote 
of any person is challenged on the ground that he has 
been convicted of an infamous crime or disfranchised, the 
person offering to vote shall not be required to answer any 
questions respecting such alleged conviction, nor shall any 
proof thereof be received, other than the record of convic- 
tion or a duly authenticated copy thereof, except sucn 
proof as may be necessary to show that he is the same per- 
son named in the record, or that such person may produce 
to rebut the evidence of identity produced on behalf of the 
challenge. 

The most difficult matter of fact to determine with re- 
ference to the right of a person to vote, and which perhaps 
most frequently arises, is the question of residence. It will 
be seen that no period of residence in the county, town- 
ship, or precinct is required, hence a person who has 
resided in this state six months immediately preceding an 

Constitution of Indiana, art. 2, sec. 3; see 1 R. S. 1877, 26. 



72 ELECTIONS. 



election, may remove from one county into another, with 
the intention of becoming a resident of the county into 
which he removes, and will have the immediate right to 
vote in the township or precinct in which he settles. It is 
sufficient, so far as the residence in the township or pre- 
cinct is concerned, if the person offering to vote is a bona 
fide resident thereof at the time he offered to vote. 

If a person removes from the state, with the intention 
of becoming a resident of another state, his residence in 
this state is lost although he immediately return, and he 
will not be entitled to vote until he has resided in this 
state six months. 

It is expressly provi'ded by the constitution that no per- 
son shall lose his residence in consequence of absence from 
the state on business of the state or of the United States. 1 An 
elector will not lose his residence because of temporary 
absence from, the state on business or for pleasure, nor can 
a residence be acquired by a sojourn within the state for 
any temporary purpose whatever, without the intention 
of remaining for an indefinite time at least. Eesidence, with- 
out the intention of remaining, confers no political rights, 
and such resident can not vote in the precinct where such 
temporary sojourn is made. 2 Where a person leaves the 
state with the intention of returning, he will not lose his 
residence although the time of his return is not definitely 
fixed ; nor will his residence be lost where he leaves the 
state, intending to return at a fixed period, but is prevented 
from doing so beyond such time by circumstances not 
under his control. If, however, a person leaves the state 
with the intention of returning, but afterward changes his 
intention, and determines to remain out of the state per- 
manently, then his residence in this state is lost although 
he should subsequently return. 

Counting votes, when commenced and how conducted, — 
When the polls are closed, the judges may open the ballot- 

1 1 R. S. 1876, 26. 2 See note to French v. Lightly, 9 Ind. 475. 



ELECTIONS. 73 



box and commence to count the ballots, or they may do so 
at any time after four o'clock, when they are at leisure. 

The ballots shall be taken out carefully, one by one, by 
the inspector, who will open them as he takes them out, 
and read aloud the name of each person written or printed 
thereon, and the office for which each person is voted for ; 
and he shall then hand the ballot to one of the judges, who 
shall examine it and hand it to the other judge, who shall 
string it on a thread of twine. If more persons are desig- 
nated for any office than are to be elected, such part of the 
ticket shall be rejected, and shall not be counted for any 
of them. The statute provides that if two tickets are pur- 
posely folded together, both shall be rejected. This must 
be held to mean that if two tickets are folded together be- 
fore being deposited in the box, whether by accident or 
design, neither shall be counted. No ticket shall be re- 
jected for want of form, if it can be determined for whom 
the person voted and the office intended. No clerk or 
judge of any election shall vote after commencing to count 
the votes, nor make known to anyone not a member of the 
board the result of their counting, until the election is 
closed. 

Certificate of judges. — When the votes are counted, the 
board shall make out a certificate under their signatures, 
stating the number of votes each person has received, in 
words, and designating the office for which such votes were 
cast, and the certificate, together with one list of votes and 
one of the tally-papers, shall be deposited with one of the 
judges, as the inspector selected by the board of judges. 

Board of canvassers. — The inspector or judge of each 
township or precinct, to whom such certificate, poll-books, 
and tally-papers shall have been delivered, shall constitute 
a board of canvassers, and must meet at the court-house 
of the proper county, on Thursday next succeeding the 
election, between the hours of ten o'clock a. m. and six 
o'clock p. m., and select one of their number as chairman, 



74 ELECTIONS. 



the clerk of the circuit court to act as their clerk, and can- 
vass and estimate the certificates, poll-lists, and tally-papers 
returned by each member of said board. The board must 
carefully compare and examine the papers entrusted to 
them, and estimate from them the vote of the county, a 
statement of which must be drawn up by the clerk, which 
shall contain the names of persons voted for, the office, the 
number of votes given in each township for each person, 
and to each person in the county, and the total number of 
votes given, and the statement must be signed by every 
member of the board, and with the certificates, poll-books, 
and tally-papers, delivered to the clerk to be filed by him 
in his office, where the same must be kept, subject to the 
inspection of any legal voter of the county or district. 
The other papers and the ballots must be kept by the in- 
spectors six months, except in case the election is contested 
they must be kept till the contest is settled. The board must 
declare the person receiving the largest number of votes 
for any office to be filled by the voters of a single county, 
duly elected to such office, and certify the same in the 
statement above-mentioned. If two or more persons have 
the highest and an equal number of votes for the same 
office, to be filled by the voters of one county, the board 
must forthwith declare that no person is elected to fill such 
office, and shall certify the same in their statement, and 
when such statement is filed with the clerk, he must issue 
a writ for an election, or certify the fact to the proper tri- 
bunal to fill such vacancy. No tally-papers, poll-book, or 
certificate returned from any election by the judges thereof 
.shall be rejected for want of form, nor because it is not 
strictly in accordance with the provision of the statute, if 
the same can be satisfactorily understood. 

Compensation of election officers — Each inspector, judge, 
and clerk of any election shall have credit for one day's 
worbon the public roads of his district for every day he 
is employed in attending an election, but when the number 



ELECTIONS. 75 



of votes at any poll exceeds three hundred, the county 
commissioners may make such additional allowance as may 
be just and reasonable. 

If such inspector, judge, or clerk shall not be bound 
by law to work in person, or do not owe road tax, the 
county commissioners must allow seventy-five cents per 
day to each, and must allow each returning judge or in- 
spector a reasonable compensation for his services as such. 

Penalty for illegal voting. — If any person vote or offer 
to vote in any precinct in which he may reside, or who 
shall vote, or offer to vote, who is not by law entitled to 
vote, he shall be liable to be imprisoned in the state prison 
not less than one year for each offense. 1 

1 For penalties for the violation of the election law see Acts 1877, 
epecial session, page 41, sees. 9 and 10; 2 R. S. 1876, page 475, sees. 
55, 56, 58, 60, 61, and note 1, page 476; Id. 453, 454. 



76 ENUMERATION. 



CHAPTER Vn. 

ENUMERATION. 

When and by whom made. — The statute requires that an 
enumeration be made of the male inhabitants of the state 
over the age of twenty-one years, both white and colored, 
once in six years, counting from 1871. The trustees of the 
several townships are charged with the duty of making the 
enumeration, and must, between the first day of January 
and the first day of July of the years in which the enumer- 
ation is required to be made, ascertain the name and age of 
every male inhabitant, over the age of twenty-one years, re- 
siding at the time of making the enumeration in his town- 
ship, and shall write such name or names in a book or 
books to be provided for the purpose, setting opposite each 
name the age of such persons, as nearly as the same can be 
ascertained, and he must put the names of the white and 
colored male inhabitants in separate lists, designated as 
" white male inhabitants " and " colored male inhabitants," 
respectively, and shall number the names in numerical or- 
der as they are written in the book or books. 

Each trustee must, also, on or before the first day of 
July of each of the years in which the enumeration is to 
be made, arrange in alphabetical order, in another book to 
be provided for that purpose, the names of all persons who 
may have been enumerated as aforesaid; also setting oppo- 
site the name of such person his age as nearly as can be 
ascertained, and must attach to said book his affidavit, set- 
ting forth that the book contains, as he verily believes, an 
honest, true, correct and complete enumeration of all the 
male inhabitants over the age of twenty-one years resi- 
dent at the time of taking said enumeration in his town- 
ship, naming the township ; that no person has been 



ENUMERATION. 77 



enumerated or returned in said book who was not, at the 
time of making said enumeration a male inhabitant, over 
the age of twenty-one years, of said township, to the best 
of his knowledge, information, and belief, and that he has 
not knowingly or negligently omitted to enumerate and re- 
turn in said book any male inhabitant, over the age of 
twenty-one years, who was a resident therein at the time 
of making said enumeration, which affidavit may be made 
before any officer authorized to administer oaths. 

The book must then be returned to the county auditor 
on or before the first day of July. 

Trustee may appoint assistant. — Township trustees may 
make the enumeration in person, or they may appoint, in 
writing, one or more assistants, and may assign to such 
assistants the whole or any part of the township. If a 
part of the township only is assigned, such part must be 
described in the appointment. The trustees may remove 
any assistant, at any time, and appoint another in his 
place. 

Duties of assistant. — The assistant must, before entering 
upon the discharge of his duties, take and subscribe an oath 
to faithfully discharge his duties, and must make the enu- 
meration, in all respects, as the trustee is required to do, and 
when completed he must make his return to the trustee, 
with his oath attached thereto, in a book to be furnished 
him by such trustee, showing that the book contains a cor- 
rect enumeration of the male inhabitants in the township 
at the time of making the enumeration, or so much of such 
township as was assigned to him, describing such part of 
the township. The oath may b j administered by the trustee 
or other officer authorized to administer oaths. 

The affidavit must also show that no person has been 
enumerated or returned in such book who was not a male 
inhabitant of the township, or part thereof assigned to him, 
at the date of enumeration, and that he has not omitted 



78 ENUMERATION. 



any such person who was an inhabitant thereof at such 
time. 

Assistant to make return to trustee. — The book and the 
enumeration must be returned to the trustee at sueh time 
before the first day of July as the trustee may direct, and 
shall be filed in his office as one of the records thereof. The 
date of filing must be noted and the book must be at all 
times open to the inspection of the public. 

Trustees may correct errors of assistants. — The trustee, 
may, at any time before making his return to the county 
auditor, correct any error or mistake, or supply any omis- 
sion which may have been made by himself or any of his 
assistants in making the enumeration of the townshij), but 
such correction must be made without altering or mutilat- 
ing the book. and return made by the assistant, and if the 
township trustee shall discover any such error, mistake, or 
omission, after having made his return to the county au- 
ditor, it is his duty, immediately upon the discovery of 
such error, mistake, or omission, to make and sign a state- 
ment in writing, to be verified by his affidavit, and to be, 
without delay, transmitted to the auditor of the county, 
setting forth the facts in detail in relation to such error, 
mistake, or omissiion, and wherein such error, mistake, or 
omission consists; and it shall be the duty of the auditor 
to attach said communication to the original book returned 
by the township trustee, and such communication shall be 
treated as a correction or amendment of such book. 

Auditor to give notice of return of enumeration. — As soon 
as the trustees have made their returns, the county auditor 
must give notice thereof in two newspapers of the county, 
if so many are published in the county, and, if not, in one 
newspaper, that the enumerations are subject to inspection 
at his office, and inviting an examination thereof, with 
a view to the correction of any errors, mistakes, or omis- 
sions therein, and stating the number of mate inhab- 



ENUMERATION. 79 



itants, over the age of twenty-one years, in each township, 
and in the county, according to the enumeration. If no news- 
paper is published in the county, the sheriff must post the 
notice, in the form of printed hand-bills, at the door of the 
court-house, and of the clerk's, auditor's, recorder's, and 
treasurer's office of the county, and in three public places 
in each township of the county. 

Auditor may correct mistakes. — The auditor may correct 
any mistakes and omissions, and, for the purpose of deter- 
mining any questions that may arise as to such mistakes 
or omissions, may issue subpenas for witnesses, and exam- 
ine them under oath. The corrections must be made in a 
book to be provided by the auditor, and not otherwise, as 
provided by statute. 

Penalty for violation of official duty. — If any officer, 
charged with the performance of any duty, under the enu- 
meration law, shall make any false affidavit in reference to 
any of his official acts, he will be deemed guilty of perjury, 
and if any such officer shall fail to perform any of his of- 
cial duties, within the time prescribed by law, he shall, for 
every such offense, forfeit and pay "not less than fifty, and 
not more than five hundred dollars, to which may be added 
imprisonment in the county jail not exceeding six months; 
and, if any such officer shall be guilty of any fraudulent act 
or omission in relation to such duty, ho shall, for every such 
offense, forfeit and pay not less than one hundred, nor more 
than one thousand dollars, to which may be added impris- 
onment, not exceeding six months, and the grand jury has 
jurisdiction of such offenses. 

Auditor of county to furnish blanks. — It is the duty of the 
auditor of state to furnish the forms necessary to be used 
by trustees and their assistants in taking the enumeration, 
and county auditors must procure at the expense of their 
respective counties, all the books and blanks, prepared ac- 
cording to the forms prescribed by the auditor of state, 



80 ENUMERATION. 



which will be necessary to enable trustees to make the 
enumeration, and furnish the same to such trustees. Each 
trustee is also entitled to receive from the county auditor a 
copy of the enumeration law. 



ESTRAYS AND ARTICLES ADRIFT. 81 



CHAPTER VIII. 

ESTRAYS AND ARTICLES ADRIFT. 1 

Estray property must be advertised. — Any person taking 
up any estray horse, mule, ass, sheep, goat, hog, or cattle, 
or any article of value adrift, must, within five days there- 
after, advertise the same in three of the most public places 
in the township where such property is taken up, stating 
the time of such taking up, and particularly describing 
the property. 

The notice may be as follows : 

Form of Notice of Estray Property. 

Notice is hereby given that the undersigned on the 10th 
day of June, 1877, in York township, took up a stray cow, 
described as follows [here describe fully']. Said animal is 
at my farm in said township. 

Charles Ward. 

June 12, 1877. 

When property must be reported to justice. — If, within fif- 
teen days after such taking up, the owner does not claim the 
property, the taker-up must report the same to a justice 
of the peace of the township, and shall at the time make 
oath before such justice, that the marks, brands, or appear- 
ance of such property have not been altered by him, nor 
any other person to his knowledge, since the same became 
an estray, or adrift, except as is stated in his written report. 
If the property be ahorse, mule, or ass, above two years old, 
he must also take the same to the pound of the county, if 
there be one, and keep the same therein from eleven o'clock 
A. m. to three o'clock p. m., on the first day of each of the 

HRS. 1876,462. 



82 ESTRAYS AND ARTICLES ADRIFT. 

two succeeding terms of the circuit court of the county 
after the taking up of said estray. 

Form of Eeport to Justice. 

To William Eobertson, 

Justice of the Peace : 

The undersigned reports, that on the 10th day of June, 
1877, he took up a stray cow in York township, described 
as follows [here describe as in the notices]. That he has duly 
advertised the same, and that the owner of said property 
has not claimed the same, although fifteen days have elapsed 
since said animal was taken up. [If the marks or abear- 
ance of the property have been changed it must be stated.'] 

Charles Ward. 

August 12, 1877. 

Form op Affidavit to be attached to Eeport. 

State of Indiana, Dearborn County, ss : 

Charles Ward, being duly sworn, says that the marks 
and appearance of the cow, in the above report described, 
have not been altered by him, nor by any person to his 
knowledge [or if any change has been made, add], except as 
in said report stated. 

Charles Ward. 

Subscribed and sworn to, etc. 

Justice must issue warrant to appraisers. — The justice of 
the peace must issue his warrant to three householders of 
the neighborhood, not of kin to the taker-up, unless that 
number of persons, not of kin, can not be found in the 
township, directing any two of them to appraise such 
property, which they must do, and report their appraise- 
ment to the justice. Their report must clearly describe 
the property, and state their valuation thereof, and they 
must, under oath, declare that such description and ap- 
praisement were made with out partiality, favor, or affection. 
Each appraiser is allowed a fee of fifty cents. 



estrats and articles adrift. 83 

Form of Warrant to Appraisers. 

State of Indiana, Dearborn County, ss : 

To James M. Blasdel, William Ewbank, and Eob- 
ert Hargitt : 
Wliereas, Charles Ward, on the 10th day of June, 1877, 
took up a certain stray cow, in York township, and has 
duly advertised the same, and the owner has not claimed 
said property; therefore, any two of you are hereby re- 
quired to ajypraise said animal, and make report to me, 
under oath, of your appraisement, clearly describing the 
same, and giving your valuation thereof. 

Given under my hand, the 26th day of June, 1877. 

William Eobertson, 

Justice of the Peace. 

Form of Eeport of Appraisers. 

State of Indiana, Dearborn County : 

To William Eobertson, 

Justice of the Peace: 
The undersigned, two of the appraisers named in the 
warrant hereto attached, report that said animal is de- 
scribed as follows [here give particular description] ; and that 
we have appraised said cow at the sum of thirty dollars. 

James M. Blasdel, 
William Ewbank, 

Appraisers. 

Form of Oath to be attached to Eeport. 

State of Indiana, Dearborn County : 

James M. Blasdel and William Ewbank, being duly 

sworn, on oath state that the appraisement and description 

in the foregoing report were . made without partiality, 

favor, or affection. 

James M. Blasdel, 
William Ewbank. 



84 ESTRATS AND ARTICLES ADRIFT. 

Justice must make report to clerk of circuit court. — The 
justice must report to the clerk of the circuit court of the 
county, a copy of the description and appraisement there- 
of, and must transmit, with such report, a fee of fifty cents. 
The clerk will enter such description and appraisement in 
a book kept by him for that purpose. 

Wlien property must be advertised in newspaper. — If the 
property estray or adrift exceeds in value ten dollars, it 
must be advertised in some newspaper of the county, if 
there be one ; if not, in the paper in the county nearest 
thereto having one, and the clerk of the circuit court must 
forward to the printer a copy of the register thereof, 
marked outside " Estray Paper," together with a fee of one 
dollar. 

Where property shall belong to taker-up. — In all cases 
where the provisions of the estray laws have been complied 
with, property adrift, not exceeding in value twelve dol- 
lars, unclaimed or unproven by the owner within ninety 
days after taking up, and other estray property, not ex- 
ceeding in value ten dollars, and unclaimed and unproven 
by the owner within one year after the taking up, shall be- 
come the property of the taker-up. 

When to be reported to justice of the peace. — If the ap- 
praised value of the property adrift exceeds twelve dollars, 
or animals estray, other than horses, mules, or asses, ex- 
ceeds ten dollars, in either case unclaimed or unproved, the 
first within ninety days, and the latter within six months, 
of the time of taking up, the taker-up shall report the 
same to some justice of the peace of the township, within 
five days after the expiration of the time specified. This 
report may be similar in form to the report made to the 
justice in the first instance, and need only be changed to 
conform to the facts. 

Justice must issue his warrant to sell property. — The jus- 
tice to whom such property is reported, must thereupon is- 
sue his warrant to some constable of the township, direct- 



ESTRATS AND ARTICLES ADRIFT. 



ing him to sell the property at public auction, giving ten 
days' notice, in writing, of the time and place of sale, and 
giving a description of the property to be sold. The con- 
stable must return the order and the proceeds of the sale 
to the justice, within five days after the sale, retaining one 
dollar for his services. 

Form of Warrant to Constable. 

State of Indiana, Dearborn County, ss : 

To any Constable of Center Township: 

Whereas, On the 5th day of July, 1877, , 

took up, adrift in the Ohio river, in said township, a skiff 
[describe- by giving marks and appearance'], and said prop- 
erty was duly appraised at the sum of fifteen dollars ; and 
although more than ninety days have elapsed since said 
property was taken up, the same has not been claimed or 
proven by the owner. 

You are therefore commanded to sell said property at 
public auction, to the highest bidder for cash in hand, after 
first giving ten days' notice of the time and place of sale, 
and make due return of your proceedings herein. 

Given under my hand, the 7th day of October, 1877. 

Isaac H. Carbuagh, 

Justice of the Peace. 

When and to whom justice must pay money. — Upon the 
return of the warrant and proceeds of the sale by the con- 
stable, to the justice of the peace, the justice must imme- 
diately pay over to the county treasurer the proceeds of 
the sale, after deducting the proper amount to be paid to 
the taker-up, fifty cents for his own fee, and five cents for 
every mile that it is necessary for him to travel in making 
his return, and he must take from the treasurer duplicate 
receipts, one to be filed with the clerk and the other with 
the auditor. 

Property exceeding in value twenty dollars. — Any horse, 



86 ESTRATS AND ARTICLES ADRIFT. 

mule, or ass, taken up, the appraised value of which ex- 
ceeds twenty dollars, and which shall remain unclaimed or 
unproven at the expiration of twelve months from the 
time of taking up, shall be, by the taker-up, delivered to 
the sheriff of the proper county, on the first day of the term 
of the circuit court next after the expiration of such time, 
and shall be, by said sheriff, sold at public sale, and after 
retaining one dollar for his services, and paying to the 
taker-up his charges, as provided by law, the sheriff shall 
pay the proceeds of such sale to the treasurer of the 
county within five days thereafter, taking from the trea- 
surer duplicate receipts, and filing one of the same in the 
clerk's office and the other with the county auditor. 

Estray fund. — All sums paid to the county treasurer 
under the provisions of the estray law, shall be by him 
entered to the credit of the county, under the head of 
estray fund. 

Compensation of taker-up. — The taker-up shall be entitled, 
for taking up, for each horse, mule, or ass, one dollar ; each 
head of neat cattle, fifty cents; each sheep, goat, or hog, 
above six months old, ten cents; but where the owner re- 
claims and proves his property before the same is posted, 
the taker-up shall only be allowed one-half of such com- 
pensation. 

Compensation for taking up property adrift. — The taker- 
up of property adrift shall be allowed a reasonable sum, 
to be determined by some justice of the peace of the town- 
ship ; but either the claimant or the taker-up thereof, may 
if they choose, have a jury to determine what amount 
shall be just and reasonable for taking up and taking care 
of such property ; the justice, constable, and jury shall be 
allowed the same fees as in other cases. 

What fees are to be paid by taker-up. — The taker-up of 
property exceeding three dollars in value, shall pay to the 
justice, at the time of reporting, fifty cents for the justice, 
fifty cents for the clerk, and one dollar for the printer, 



ESTRAYS AND ARTICLES ADRIFT. 87 

where printing is required; but if under three dollars, the 
justice shall make no return to the clerk, and his fee shall 
be twenty-five cents only. 

Register of estrays. — The clerk of the circuit court shall 
keep a register of estrays ; where several estrays or arti- 
cles adrift are taken up by one person, there shall be only 
one entry and one advertisement, one fee of the clerk, and 
one of the justice. 

Compensation to taker-up for keeping property. — Upon 
property sold or reclaimed, the taker-up shall be allowed 
such compensation for keeping such property as shall be, 
by the jutice before whom the proper proceedings are had, 
deemed just and reasonable, and such taker-up shall keep 
account of the time any estray animal is kept by him, and 
make oath to the same. 

When animal has been worked. — If any animal is taken 
up, and worked by the taker-up, a reasonable compensa- 
tion shall be allowed for the services of such animal, to be 
deducted from the keeping; the taker-up, if required, 
shall verify, under oath, the time he has worked said 
animal. 

Mow owner may redeem property- -At any time before 
sale, the owner may have his property by proving the same 
before the justice of the township where taken up, and 
paying charges. And at any time within two years after 
sale, but not later, he may reclaim the money paid into the 
treasury, by proper proof before the county auditor. 

When certain animals must not be taken up. — ISTo person 
shall take up any horse or stock except at his place 
of residence ; or drive the same out of the woods and take 
them up; nor shall any animal be taken up between the 
first day of April and the first day of November, unless 
the same be found in the inclosure of the taker-up. If, 
however, the animal is in the act of escaping from the 
owner, it may be taken up at any time wherever found. 

Property not to betaken out of the county . — The taker-up of 



88 ESTRATS AND ARTICLES ADRIFT. 

an estray animal, until he become owner, shall not take, or 
suffer to be taken, out of the county, any property taken 
up, for more than three days at any one time. 

Fatted hogs may be killed. — Fatted hogs taken up may, at 
the option of the taker-up, be killed one month after post- 
ing; but, in that case, the taker-up shall, forthwith, after 
killing the same, pay their appraised value, deducting costs 
and charges (to be liquidated as in other cases), to the 
county treasurer, for the use of the owner. 

Stock hogs. — Stock hogs taken up may, at the option of 
the taker-up, be by him paid for six months after posting 
at their appraised value, deducting costs and reward for 
taking up, but no allowance for keeping the same. 

Articles adrift. — Whenever, upon any navigable waters 
within or bordering upon the state, the cargo which may have 
been shipped as freight, or the baggage of passengers, or 
part thereof, of any vessel may be cast adrift, afloat, or 
ashore, by any wreck, accident, or mischance of such ves- 
sel, such cargo, or part thereof as may have been taken up 
and secured by any person, may be reclaimed by the cap- 
tain, clerk, or officer navigating such vessel, the supercargo, 
owner, or agent of the owner of such cargo or baggage 
who may be the claimant thereof. 

When property adrift must be surrendered. — Such property 
shall be surrendered to such claimant upon proof or cir- 
cumstance satisfactory to the taker of the property of the 
right of such claimant having a general or special prop- 
erty, agency, or control therein, upon the payment by 
such claimant of reasonable compensation for service or 
expenses in the taking and preserving such property. 

Upon refusal to surrender property .owner may sue. — Should 
such person, or the person having possession of the prop- 
erty, refuse to restore it to the claimant, or claim unreason- 
able compensation for the services and expenses in its tak- 
ing up and preservation, the claimant may have a summary 



ESTRATS AND ARTICLES ADRIFT. 89 

proceeding before any disinterested justice of the peace 
for the recovery of such property. 

Affidavit to be filed before justice. — The claimant must file 
before the justice an affidavit of the facts attending the 
wreck or accident, enumerating, as nearly as possible, the 
articles or packages withheld, his right to receive the same; 
and, thereupon, the justice shall summon the person tak- 
ing up, or in possession of such property, to appear before 
him, at a place, and at the earliest practicable period, not 
more than three days, to be designated in the writ. 

The affidavit may be substantially as follows: 

Form of Affidavit for Eecovery of Freight. 

State of Indiana, Dearborn County : 

Philip Emmert, being duly sworn, on oath states that he 
is the owner of two boxes of goods, marked [here give marks 
or brands'], which boxes were found, on the morning of 
October 2, 1877, cast ashore on the beach of the Ohio 
river, about one-fourth of a mile below the mouth of the 
Miami river, in Lawrenceburgh township, in said county, 
by one John Jones ; that said boxes ~of goods were shipped 
to deponent on the first day of October, 1877, on the 
steamer Minnie, from the port of Cincinnati, Ohio, to be 
delivered to this deponent at the wharf at Lawrenceburgh, 
Indiana, and that, on the night of said last named day, 
said steamer, while descending the Ohio river, collided with 
the steamer Water Witch, which was ascending said river, 
and said steamboat Minnie was thereby disabled from pro- 
ceeding upon said trip, and was compelled to run ashore, and 
said boxes of goods were thrown upon the beach to prevent 
their loss. He further says that he has tendered to said 
John Jones one dollar, for his compensation for taking care 
of said goods, and is still ready and willing to pay such 
sum, and which is all that he is entitled to receive for his 
services, yet the said John Jones wrongfully detains said 



90 ESTRATS AND ARTICLES ADRIFT. 

property from deponent, and he asks judgment for the re- 
covery thereof. 

Philip Emmert. 
Subscribed and sworn to, etc. 

Such justice shall hear and determine the matters in con- 
troversy, in the most speedy manner practicable, as other 
proceedings are bad before him, and may fix the amount 
of compensation to be paid by such claimant, and award a 
writ, or writs, for the delivery of the same forthwith to 
such claimant, upon payment of such compensation. The 
writ for the delivery of the property should be directed to 
the constable, commanding him to deliver the property to 
the claimant. 

The trial will be governed by the usual rules of proced- 
ure before justices, except as to continuances, and appeals 
may be taken by either party upon the same terms, and 
under the same regulations as appeals in other cases are 
taken. The meaning of the statute seems to be that no 
continuance should be granted, but that the justice must 
at once proceed to hear the evidence and dispose of the 
case without delay. 

Penalty for violation of estray laics. — If the taker-up of 
estray property take or suffer to be taken out of the county 
where taken up for more than three days at a time, or shall 
convert it to his own use before the title is vested in him, 
or if he willfully violate any provision of the estray law, 
he will be subject to a fine of not exceeding one hundred 
dollars, or to imprisonment in the county jail not exceeding 
six months. 2 

1 Acts 1877, Special Session, 43. 2 2R.S. 1876, 475. 



FENCES. 91 



CHAPTER IX. 

FENCES. 

WJiat is a lawful fence. 1 — The statute provides that any 
structure, hedge, or ditch, in the nature of a fence, used 
for the purpose of inclosure, and which is such as good 
husbandmen generally keep, and which shall, upon the tes- 
timony of skillful men, appear to be sufficient, shall be 
deemed a lawful fence. 

It has been held that the kind of fence intended by the 
statute is not such as may be kept by farmers in particular 
localities. Hence, in a case where a party sought to show 
that his fence was located in a place subject to overflow in 
times of high water, and where all fences were removed 
during the winter to avoid spring freshets, and that, al- 
though not such a fence as good husbandmen generally 
keep, yet was as good as the fences kept in that locality, it 
was held that such fence was not lawful. 2 

When owners of animals are liable for damages. — If, in 
any township where domestic animals are not permitted to 
run at large, by order of the board of county commission- 
ers, any such animals break into any inclosure, or wander 
upon the lands of another, the person injured thereby may 
recover the amount of damages which such animals may 
do, from the owner thereof, whether the fence of such in- 
jured person be lawful or not. But, in townships where 
such animals are permitted to run at large, it must be 
shown, in order to make the owner liable for damages, that 
in entering upon the premises the animals broke through a 
lawful fence. 3 

Outside fences only required to be lawful* — The provisions 

1 1 R. S. 1876, 495. 2 32Ind. 437. 

3 Acts 1877, Special Session, 42. 4 9 Ind. 290; 33 Ind. 497. 



92 FENCES. 



of the statute, requiring persons to maintain lawful fences, 
applies to outside structures only. The law imposes upon 
owners of domestic animals the duty of keeping them 
upon his own premises, except where he may lawfully 
permit them to run at large upon the public common ; and 
if he suffers them to go from his inciosure, upon the lands 
of another, he will be liable for the damage they may do. 

When animals may run at large. — The owner of domestic 
animals may, within the limits prescribed by the order of 
the board of commissioners, permit them to go upon the 
public common and uninclosed land, and he will not be lia- 
ble for any damage they may do by trespassing upon in- 
cisures, unless they break through a lawful fence, as has 
already been explained. 

When animals may be taken up. — When any domestic 
animal shall break into the inciosure of any person, such 
person, without regard to the season of the year, may 
take up such animal as if an estray, whether the owner be 
known to him or not; and if the owner be known to 
the person taking up the animal, and he can be imme- 
diately found, notice of such taking up should be given 
to the owner within twenty -four hours. Such notice need 
not be in writing. 

When taker-up must advertise. — If the owner of such 
trespassing animals be not known to the taker-up, he must, 
within five days, advertise the same in writing in three of 
the most public places in the township where such property 
is taken up, and giving a particular description of the ani- 
mal, as in case of an estray. Before posting or advertis- 
ing, the statute requires the taker-up, to procure from two 
disinterested freeholders, an examination and appraise- 
ment, and a certificate of the amount of damages, and their 
reasonable cempensation for making the appraisement.j 
The certificate of the persons called on to appraise the 
damages may be in the following form : 



FENCES. 93 



Form of Appraisers' Certificate. 

State of Indiana, County of Dearborn, Miller Township: 

We, the undersigned, disinterested freeholders, do hereby 
certify that we have, at the request of Perry Carter, made 
examination of the damage done to his premises, in Miller 
township, in said county, by three cows found trespassing 
thereon, on the 9th day of August, 1877, and we assess his 
damage as follows : 

Damage to growing corn, $5 00 

" " Fruittrees, 2 50 



Total, $7 50 

And we further certify, that one dollar each is reasona- 
ble pay for our services for making such assessment. 
Witness our hands, this 10th day August, 1877. 

Charles W. Stevens. 
James McKinney. 

The advertisement may be as follows : 

Form of Advertisement. 

.Notice is hereby given, that on the 9th day of August, 
1877, I took up the following animals trespassing on my in- 
closure, in Miller township, to wit : Three cows [here de- 
scribe them], and that the damage done by said animals has 
been assessed at seven dollars and fifty cents, and the sum 
of two dollars has also been assessed as compensaton to 
the appraisers of the damage. The owner of said animals 
can have them on payment to me of said damages, costs, 
and expenses. 

Perry Carter. 

August 12, 1877. 

How trespassing animals may be reclaimed. — The owner of 
a trespassing animal may reclaim the possession thereof 
from the taker-up, by proving his property and paying 



94 FENCES. 



costs, as in cases of estrays, and also the damage done, and 
the costs of assessment, at any time within five days after 
the owner of the animal has notice of the assessment of 
damages he may controvert the amount thereof, and also 
deny the fact of the trespass, by going before any justice 
of the peace of the township, and filing a statement of the 
facts, which may be substantially in the following form, 
which may be varied to conform to the facts in each par- 
ticular case : 

Thomas Mason j Before Sebagtiarl Greenj j ustice of the 

i Peace 
Tyler Annis. j 

Thomas Mason complains of Tyler Annis, and says, that 
on the 5th day of June, 1877, the defendant took up three 
cows, the property of the plaintiff, alleged to be trespass- 
ing upon his premises, and that the defendant has caused 
the alleged damage done to his premises to be assessed, and 
such damages have been appraised at seven dollars and 
fifty cents, and the sum of two dollars has been assessed as 
the compensation for the appraisers, and that he received 
notice of such assessment within five days past, and that 
defendant has possession of the said cattle, and refuses to 
surrender the same until said damages and fees are paid. 
The plaintiff denies such alleged trespass, and controverts 
the amount of damage assessed as aforesaid, and the plaintiff 
says, that by reason of the wrongful and unlawful taking 
up and detention of said cattle, he has sustained damage in 
the sum of ten dollars, and prays judgment for the recov- 
ery of said property, and for damages. 

Thomas Mason, 

Plaintiff. 

Proceedings before justice. — Upon the filing of the com- 
plaint, the justice must issue a summons for the defendant, 
and docket the cause for trial as in other cases, and either 



FENCES. 95 



party may demand a jury. If damages are assessed, the 
owner must pay such damages, and the costs, before he can 
recover his property. If the verdict or finding be that the 
trespass was not committed by the animals taken up, judg- 
ment must be rendered against the person taking up the 
animals, and for such damages as may be assessed, and for 
costs. If the justice or jury trying the cause find that the 
fence through which the animals broke was not lawful, the 
animals must be released, and the occupant of the inclos- 
ure must pay the costs and such damages as may be as- 
sessed. 

Damages to be retained when animal is sold. — When tres- 
passing estray is sold, the taker-up, in addition to the usual 
costs and allowances in the case of estrays, may retain, out 
of the value of such estrays, the damages sustained by 
such trespass, and the costs of their assessment. 

Partition fences. — The statute further provides, that a par- 
tition fence shall be lawful, if it be sufficient to inclose and 
restrain sheep, unless by the mutual agreement of the par- 
ties interested, they agree to build a fence only to restrain 
or inclose horses, mules, or cattle. 

Sufficiency of partition fence, how determined. — The ques- 
tion of the sufficiency of a partition fence must be deter- 
mined by the testimony of skillful men, keeping in view 
the provisions of the statute, or the agreement of the par- 
ties who built or are using the fence, if they have made 
any agreement on the subject* If the animals intended to 
be inclosed or restrained by such partition fence, break 
through the same into the adj.oining inclosure, the person 
injured thereby would be entitled to recover the damage 
done, if the fence be such as is required by statute or the 
agreement of the parties. 

Notice to repair partition fence. — When a partition fence 
becomes insufficient, and either party, whose duty it is to 
do so, fails to make repairs, the other may give him three 
days' notice that he will, at a specified time, on a day 



96 FENCES. 

named, call on two disinterested freeholders to examine 
the fence, and, if they deem it insufficient, to assess the 
amount necessary to make it sufficient. 

Although the statute does not, in terms, require that the 
notice shall be in writing, it is probably so intended, and 
a written notice should be given in all cases. The follow- 
ing will be sufficient : 

Form of Notice to Bepair Fence. 
To Edward Hayes: 

Take notice that, on the 5th day of August, 1877, at two 
o'clock p. m., I will call on two disinterested freeholders to 
examine the partition fence dividing your lands from mine, 
commencing at [here state the point of beginning and the 
place of termination, so the fence or part thereof to be exam- 
ined will be accurately described'], and, if they deem it insuf- 
ficient, to assess the amount required to make it sufficient. 

Ambrose E. Nowlin. 

August, 1, 1877. 

The notice may be served by the party himself or any 
other person. A copy of the notice should be kept by the 
party serving it. 

When party serving notice may make repairs. — If within 
fifteen days after the assessment has been made, the person 
to whom the notice has been given does not repair the 
fence, the complaining party may do so, and will have a 
right of action for the amount of the damages assessed, 
before any justice of the peace of the township. 

The complaint, in such cases, may be as follows: 

Ambrose E. Xowlin 
v. 

Edward Hayes. 

Ambrose E. Nowlin complains of Edward Hayes, and 
says that he and the defendant are owners of a certain 



FENCES. 97 



partition fence, dividing lands owned by them, situated in 
JLawrenceburgh township, and in the northeast quarter 
of the northwest quarter of section number one, town five 
range one west; that the plaintiff and defendant occupy 
the lands on both sides of said fence, and that on the 2d 
day of August, 1877, said fence had become out of repair 
and insufficient, and on said day the plaintiff served upon 
the defendant a notice that he would, on the 5th day of 
August, 1877, at two o'clock p. m., call upon two disinter- 
ested freeholders to examine said fence ; and such ap- 
praisers having been duly called upon did, on said last- 
named day, make such examination, and found the same 
insufficient, and assessed the amount necessary to make 
it sufficient at ten dollars, and that the defendant failed 
and neglected, for fifteen days, to repair said fence, and the 
plaintiff made said repairs. Wherefore he demands judg- 
ment for one half of said sum, to wit : five dollars, and ten 
per cent, damages thereon. 

Ambrose E. ISTowlin, 

Plaintiff. 

Upon the filing of the complaint the justice must issue 
a summons for the defendant, and docket the cause for 
trial as in other cases. If, by contract between the parties, 
the defendant is to keep the entire fence in repair, the 
plaintiff will, of course, be entitled to recover the whole 
amount of the assessment; and if, by agreement, each 
party is to keep in repair a certain portion of the fence, 
the appraisers need only examine such portion of the fence as 
the defendant is required to keep in repair, and the plaintiff 
will be entitled to recover the whole of the appraisement. 

Appraisement may be shown to be erroneous. — "Upon the 
trial of the cause the defendant may impeach the ap- 
praisement, and the court or jury may hear the evidence 
and determine the damages, as shown by the testimony 
of witnesses, without regard to the appraisement. The ap- 



98 FENCES. 



praisement will be presumed to be correct, however, until 
the contrary is shown. 

Defendant may tender damages and costs. — If, before the 
trial, the defendant will tender to the plaintiff the costs of 
assessment, and an amount of money in addition, in pay- 
ment of the damages, and the plaintiff proceeds with the 
trial, and do not recover more damages than the amount 
tendered to him, he will only be entitled to a judgment for 
damages, and must pay the costs of the trial accruing after 
the tender. 

When inclosure becomes a partition fence by building an- 
other fence. — When, by the inclosure of land previously 
uninclosed, a fence already erected becomes a partition 
fence between the owners or occupants of adjoining lands, 
the person making such inclosure must pay the owner of 
the fence the value of one-half thereof, as estimated by the 
owner. 1 

The owner of the fence must estimate the value of one- 
half the fence, and notify the party making the inclosure 
of the amount thereof, and demand payment, and, upon 
his refusal, may maintain an action against him in any 
court having jurisdiction. But if the defendant tenders to 
the plaintiff, before the trial, the costs accrued up to the 
date of tender, and an amount equal to, or exceeding, the 
damages recovered upon the trial, the plaintiff can only 
recover the damages, and must pay the costs accruing after 
the date of the tender. 

No person compelled to have partition fence. — No person 
inclosing land that has previously been open, can join his 
fence to that of another, except by the consent of the 
owner of such fence. No one can be required to become 
the owner of a fence, in common with his neighbor, unless 
he is willing to do so. He may permit the fence of an- 
other to be joined to his, and compel payment for one-half 
the value of his fence, as has been explained, but he may 



1 See43Ind. 447. 



FENCES. 99 



also prevent the fence of any other person from being 
joined to his altogether. 

A person who will not consent to the establishment of a 
partition fence, must leave sufficient ground for one-half of 
a lane, or enough space outside of his inclosure for the con- 
struction of a second fence. 

Notice of removal of partition fence. — If a person cease 
to use his lands, or shall lay open his inclosure, he can not 
lawfully take away any part of his inclosures which form 
a part of a partition fence between his lands and the lands 
of another person, until he shall have first given six 
months' notice to the person or persons who may be inter- 
ested in the removing of such fence, of his intention tore- 
move the same. 

The statute formerly provided that no part of a partition 
fence should be removed by one party, if the other would 
pay the reasonable value of the part proposed to be re- 
moved, and, before the statute was amended, the supreme 
court held that some steps must be taken to ascertain the 
value of the fence before it could be removed. 1 

The right of a party to remove the x portion of a parti- 
tion fence belonging to him, after giving six months' notice, 
seems now to be absolute. No special form of notice is re- 
quired. It should describe the fence, or part thereof, to be 
removed, and give the date when the removal is to be 
made. 

Removal of fence built by mistake. — In reference to the re- 
moval of a fence built by mistake by a person on the lands 
of another, the statute provides as follows: 

When any person shall, by mistake, erect any fence on 
the land of another, and when, by a line legally deter- 
mined, that fact is ascertained, such person may enter upon 
such premises and remove the fence which he may have 
made thereon, within six months after such line has been 
run as aforesaid, upon his first paying, or offering to pay, 



mind. 126. 



100 FENCES. 



to the other party, reasonable damages for injury in pass- 
ing over the soil in making such removal. 

When the fence to be removed forms any part of a fence 
inclosing a field of the other party, with a crop thereon, 
such first person shall not remove the same, so as to expose 
such field, until such crop shall have been gathered and re- 
moved, or secured from further injury, or might, with rea- 
sonable diligence, so have been gathered and secured : then 
he may immediately remove such fence and materials, al- 
though more than six months have elapsed since such di- 
vision line was run. 

Act providing for recording marks of fencing. 1 — In order to 
facilitate the recovery of rails and fencing that may be re- 
moved by high water, the legislature, at the special session 
of 1877, enacted the following statute : 

" It shall be the duty of the county commissioners to fur- 
nish a blank book to the recorder of the county, to be paid 
for out of the county fund, in which the county recorder 
shall keep a record of the marks of rails and plank fenc- 
ing, which may be adopted by freeholders of such county. 
Provided, That it shall not be obligatory on the board of 
county commissioners to procure such a book of record 
until petitioned so to do by twenty freeholders of the 
county over which they preside. 

The county recorder shall receive twenty-five cents for 
the recording of each mark, and no more, to be paid for 
by the person or persons having such mark recorded ; and 
the recorder shall, in no instance, record two marks which 
may exactly correspond. 

Any person or persons, having his or their rails or plank 
fencing marked and recorded, as herein provided, should 
such rails or plank fencing be removed, by high water and 
overflow, off their lands on to the land of another person 
or persons, such person or persons shall have the privilege 
of removing such rails and plank fencing on to their own 
premises at any time of the year : Provided, That they shall 



FENCES. 101 



be held responsible, and pay all damages that may be done 
to growing grain on the land from which such rails or 
plank fencing may be removed, or over which they may 
be hauled." 

At the same session of the legislature there was also en- 
acted a law authorizing the organization of companies for 
the purpose of inclosing, under one general fence, lands sub- 
ject to overflow. Any number of persons, not less than 
five, interested in such lands, may avail themselves of the 
benefits of the act, and by complying with the provisions 
thereof, become a body politic and corporate, and as such 
construct a fence inclosing the land of all the members, by 
assessing the cost thereof upon such lands. 1 



1 Acts 1877, Special Session, 44. 



102 HIGHWAYS. 



CHAPTER X. 
HIGHWAYS. 

WJiat are highways. — The term u highway," as used in 
the statute, includes county bridges, and state and county 
roads, unless otherwise expressly provided. 1 It has also a 
broader meaning, but it is only proposed here to consider 
the statutory provisions in regard to public roads. Every 
street is a highway. 2 It has also been held that in this 
state a neighborhood road is a public highway. 3 It is not 
necessary that a highway should be established by author- 
ity, nor is it necessary that a road should be used as such 
for twenty years, to make it a public highway, The law 
seems to be that the unopposed use of a road for a much 
less time, even as short a period as four or five years, will 
be sufficient to entitle the public to use it as a highway. 
It seems to be settled that where land has been used for a 
highway for such a length of time that public accommo- 
dation and private rights might be materially affected by 
an interruption of such use, it may be inferred that the 
owner intended a dedication of the land to the public, for 
a highway.* 

When a road has been used without interruption for 
twenty years, it is a public highway, and its width as used 
at the end of that time is the established width of the 
road. 5 

Public highways may be established in this state by 
order of the board of county commissioners of the county 
in which the road is located, by express grant, and by ded- 
ication arising by presumption from a continued use of the 
way by the public for a considerable period of time as a 

1 2 R. S. 1876, 816. 2 7 Ind. 9; 21 Ind. 277. 3 33 Ind. 80. 
* 10 lad. 219; 8 Ind. 425. 5 5 Ind. 459 ; 15 Ind. 226. 



HIGHWAYS. 103 



highway, with the knowledge of the owner of the land, and 
without objection on his part. 1 

Location, change, and vacation of highways. — When the 
location, change, or vacation of a highway, running in but 
one county, is desired, the statute requires that twelve 
freeholders of the county, six of whom shall reside in the 
immediate neighborhood of the highway proposed to be 
located, vacated, or the change to be made, shall petition 
the board of county commissioners of the county in which 
such highway is situated, or is to be located, for the loca- 
tion, vacation, or change of any highway, and such board, 
if they shall be satisfied that notice of such application has 
been given, by publication three weeks successively in a 
newspaper published in the county, or by posting up notice 
in three of the most public places in the neighborhood of 
such highway or change, at least twenty days before the 
meeting of the board at which such petition is to be pre- 
sented, shall appoint three persons to view such highway. 

Petition for Location of a Highway Bunning in One 
County. 2 

To the Honorable Board of Commissioners of Dearborn 
County, State of Indiana. 
The undersigned, resident freeholders of said county of 
Dearborn, respectfully petition your honorable board for 
the location of a public highway in the townships of Miller 
and York, in said county, as follows \liere describe the route 
of tlie proposed highway, settinq forth clearly the beginning, 
course, and termination of the road.~] The said pro- 
posed highway will pass through the lands of [liere give 
the names of the owners, occupants, or agents of all the lands 
through which the said road will pas?.] And your petitioners 
further show that six of their number reside in the im- 
mediate neighborhood of such proposed highway j and 

^Ind. 352. 2 17Ind. 430. 



104 HIGHWAYS. 



that said highway will be of public utility and they pray 
that viewers may be appointed to view such highway. 
July 1, 1877. Lorenzo D. Leming, 

Thomas Langdale, 

and others. 

It is not necessary that the petition should show that 
twelve of the signers are freeholders of the county, or that 
six of them reside in the immediate neighborhood of the 
proposed road, but such statement is proper. 1 The board 
of commissioners must, however, be satisfied, and their 
record must show, that the petition is in fact signed by the 
required number of such persons, before they can proceed 
to act upon it. Care should be taken to clearly and accu- 
rately describe the route of the proposed road, and to give 
the names of all the owners, occupants, or agents of lands 
over which it will pass. 2 Any error in these respects may 
result in the defeat of the petition after a large amount of 
costs has accumulated. 

The notice that such petition will be presented to the 
board of commissioners may be as follows : 

Notice of Petition. 
Notice is hereby given, that a petition will be presented 
to the board of commissioners of Dearborp county, at their 
September session, 1877, for the location of a highway in 
the townships of Miller and York, in said county, as fol- 
lows [here describe the proposed highway, and also give the 
names of the owners, occupants or agents of the lands through 
vjhich the road will pass as in the petition.'] 

The notice may be signed by the petitioners, or some of 
them, but it is not necessary that it should be signed by 
any one. 3 

Duty of viewers. — The auditor of the county shall issue 
a precept to the sheriff thereof, commanding him to notify 

1 20 Ind. 270. 2 See 24 Ind. 325. 3 29 Ind. 324. 



HIGHWAYS. 105 



such viewers of the time, place, and object of their meet- 
ing, and such viewers, at such time and place, after having 
taken an oath, before some officer authorized to administer 
oaths, to faithfully perform their duties, shall proceed to 
view the highway, or such change ; and if they shall deem 
the highway to be located, or the change to be made, of 
public utility, they shall lay out and mark the same on the 
best ground, not running through any person's inclosure 
of more than one year's standing, without the owner's con- 
sent, unless, upon examination, a good way can not other- 
wise be had. If the road is laid out upon the line dividing 
the land of two individuals, each shall give half the road. 
If such viewers are of opinion that the proposed highway 
is not of public utility, they must report accordingly, and 
the petition will be dismissed. 

Report of viewers, and proceedings thereon. — Such viewers) 
or a majority of them, shall make a report of their pro- 
ceedings at the ensuing session of the board of commis- 
sioners of the county in which such location, change, or va- 
cation may be made, giving a full description of such lo- 
cation, change, or vacation, by routes and bounds, and by 
its course and distance, except that in case of the vacation 
of a road, or any part thereof, such description only as will 
designate it clearly, shall be required; and, in such case, 
a copy of the order vacating such highway shall be trans- 
mitted by the proper auditor to the trustees of the town- 
ships in which such vacated highway is situate, who shall 
cause the supervisors thereof to be notified accordingly. 1 

Duty of commissioners if no objection is made. — If no ob- 
jection be made to such proposed highway, vacation, or 
change, the board shall cause a record thereof to be made? 
and shall order the same to be opened and kept in repair, 
which order shall be transmitted to the trustees of the 
townships in which such location or change is made, and 
the trustees shall cause a copy of such order to be entered 

*27 Ind. 233; 34 Ind. 337; 12 Ind. 303; 4 Ind. 459. 



106 HIGHWAYS. 



at length on their record book, and notice thereof to be 
given to the proper supervisor, to work such location or 
change. 1 

Person aggrieved may remonstrate. — Tf any person through 
whose land such highway or change may pass, shall feel 
aggrieved thereby, such person may, at any time before 
final action of the board thereon, set forth such grievances 
by way of remonstrance, and the board shall thereupon 
appoint three disinterested freeholders, as reviewers, and 
assign a day and place for them to meet. 

Duties of reviewers. — Such reviewers, having five days' 
notice, to be given by the party remonstrating, shall meet 
at the time and place designated, and take an oath faith- 
fully to discharge the duties assigned them, and shall then 
.or on any other day, to which a majority may adjourn, 
prior to the next session of such board, proceed to review 
the proposed highway, and assess the damages, if any, 
which the objector may sustain from such highway or 
change being opened, vacated, or continued through his 
lands, and shall report the same to the ensuing session of 
the board. 

Report of viewers. — If a majority of the viewers as- 
sess and report damages in favor of the objector, and the 
board shall consider the proposed highway, vacation, or 
change to be of sufficient importance to the public, they 
shall order the costs and damages to be paid out of the 
county treasury; but if a majority report against the 
claim for damages the objector shall pay the costs ; and 
when payment of damages is made, as herein provided, 
such highway shall be recorded and ordered to be opened 
and kept in repair, after notice to the proper trustees. 2 

When another viewer may be had. — If it shall be made to 
appear to the board that the damages assessed are unrea- 
sonable, they may set aside such assessment and order 

1 8 Ind. 9 ; 9 Ind. 108 ; 30 Ind. 364. 2 1 Ind. 201. 



HIGHWAYS. 107 



another review, under the same regulations as provided 
in case of the first review. 

Duties of board when objection is made that road is not of 
public utility. — If any one or more freeholders residing in 
the county, along such highway, vacation, or change, 
shall object to the same at any time before final action 
thereon, as not being of public utility, other reviewers may 
be appointed, who shall proceed, on a day to be by them 
designated, after having made an oath faithfully to dis- 
charge the duties assigned them, to examine the proposed 
highway, and shall make report to such board, at their 
next session, whether or not, in their opinion, the high- 
way, vacation, or change will be of public utility. 

Report of viewers as to utility of road. — If a majority of 
the reviewers last named report against the public utility 
of such highway, the same shall not be established unless 
the petitioners will open and maintain it at their own ex- 
pense ; but if they report favorable thereto, the objector 
shall pay the costs of the reviewers, and the highway shall 
be recorded and ordered to be opened and kept in repair. 1 

Duty of person procuring change of highway. — Whenever 
any person shall procure the establishment of a highway, 
private or public, by change of one already established 
on or across his land, before the same shall be received by 
the proper supervisor as such, it shall be made as passable 
as the old highway, or as nearly so as the nature of the 
case will admit, of which fact the trustee of the township 
in which the change is made, shall be duly satisfied before 
the supervisor shall be required to keep it in repair. 

Highway not to be opened unless damages paid or depoS" 
ited. — No such highway shall be opened, worked, or used, 
until the damages assessed therefor shall be paid to the 
persons eniitled thereto, or deposited in the county treasury 
for their use, or they shall give their consent thereto in 
writing filed with the auditor of the county. 

1 24lnd. 325. 



108 HIGHWAYS. 



Appeal may be taken. — Any person aggrieved by any 
decision of any board of commissioners, may appeal there- 
from to the circuit court of the county, upon his filing a 
bond, with surety and penalty, to be approved by the audi- 
tor of the county, conditioned for the due prosecution of 
such appeal, and the payment of costs, if cost be adjudged 
against him ; and in case proceedings shall be had in more 
than one county, the auditors of each county, on being 
notified of such appeal by the auditor of the county in 
which the appeal is taken, shall transmit to the clerk of 
the court to which the appeal is taken, all the proceedings 
in such counties ; and upon the determination of such ap- 
peal, the clerk shall notify the auditors of all the counties 
interested thereof. 

Width of highways. — No county road shall be less than 
thirty feet wide, and no township road shall be less than 
twenty-five feet wide ; and the order for laying out of any 
highway shall specify the width thereof. 

How highway on county or township line may be worked. — 
Public highways established on a county or township line, 
shall be opened and repaired by the supervisors of the 
proper road districts on each side thereof, and by the joint 
labor of the hands in each of such districts in each county 
or township. 

Fences to be moved when new road is laid out. — Whenever 
any public highway shall have been laid out through any 
inclosed land, the supervisor must give the occupants of 
such land, or the owner, if a resident of the road district, 
sixty days' notice, in writing, to remove his fence ; but the 
owner or occupant will not be compelled to move the 
fence between the first day of April and the first day of 
November; and if such fence is not removed pursuant to 
such notice, such supervisor shall cause the same to be 
done. 

When credit on highway tax may be given for moving 
fence. — If the owner or occupant shall not have been al- 



HIGHWAYS. 109 



lowed damages for the laying out of such highway upon 
his land, the supervisor shall give the person removing 
the fence credit on his highway tax for any amount that 
the supervisor shall deem just. 

When highway will be deemed vacated. — The statute relat- 
ing to highways contains the following provision : 

Every public highway already laid out, or which may 
hereafter be laid out, and which shall not be opened and 
used within six years from the time of its being so laid out, 
shall cease to be a highway for any purpose whatever ; but 
if any distinct part thereof shall have been opened and 
used within six years, such part shall not be affected by the 
provisions of this section, nor shall this section be applied 
to streets and alleys in any town : Provided, however, That 
the trustee shall decide that public necessity t does not require 
such road to be kept open, which decision shall be recorded 
by the clerk, whereupon said vacated highway shall vest 
in the rightful owner who may have the title thereof ac- 
cording to law, of the property on each side of said high- 
way. 

When this statute was enacted, the> law providing for a 
board of three trustees in each township, and a township 
clerk was in force. The statute now requires that the 
township trustee must perform the duties of the former 
board and of the clerk, and it seems to be necessary to the 
vacation of an unused highway that he shall make an en- 
try showing that public necessity does not require such 
road to be kept open. 

Actual settlers on public lands. — In all applications for the 
location, change, or vacation of any public highway, actual 
settlers upon any public lands in any county in this state, 
shall have and possess all rights in this act granted to free- 
holders. 

All public highways which have been or may hereafter 
be used as such, for twenty years or more, shall be deemed 
public highways. 



110 HIGHWAYS. 



Who are disqualified to act as viewers. 1 — No person own- 
ing lands, or who is related by consanguinity to any per- 
son owning lands, along any proposed highway or change, 
shall be competent to act as commissioner, viewer, or re- 
viewer thereof. 

Compensation of viewers. — Viewers and reviewers shall 
receive one dollar and fifty cents for every day they shall 
be necessarily employed as such. 

The township trustee of any township, on petition of an 
individual desiring to plant a hedge on his land adjoining 
a public highway, may grant such individual the privilege 
of placing his fence seven feet on such highway, if the 
fence will not be an obstruction to the highway. 

The statute providing for the laying out of a private 
way, has been held unconstitutional by the supreme court- 
There is therefore no law by which a party can have a way 
for his private use laid out over the lands of another by any 
public authority. 

When persons may petition for change of highway 
through their own lands. 2 — Persons through whose lands, any 
state, county, or township highway may run may petition 
the board of county commissioners, for permission to 
change the location of such highway, on their own land, or 
to change such road on the lands of any other person con- 
senting thereto. 

Notice to be given. — Notice of the intention to file such 
petition must be given by posting written or printed no- 
tices thereof, in three or more public places in the vicinity 
of such proposed change. 

Proceeding before commissioners. — Upon the filing of such 
petition, and proof of posting notices, the board of com- 
missioners shall appoint three disinterested freeholders of 
the county, as reviewers, who shall meet at such time as 
they may appoint, and after having been duly sworn, or 
affirmed, shall proceed to view the premises, and they, or 



2 1R. S. 1876,537. 



HIGHWAYS. Ill 



a majority of them, shall report the respective distances of 
the established and proposed highway, and the situation of 
the ground along each, and whether or not, in their opin- 
ion, the public will be materially injured by such proposed 
change, and shall file their report with the board of com- 
missioners, at the next session thereafter. 

Bemonstrance may be filed. — Upon the filing of such re- 
port, and before action thereon, if the report be favorable 
to the change, any freeholder may file his remonstrance 
against the same, stating therein the reasons why the 
change ought not to be made, aud an issue may be made 
thereon ; and, if the report of the viewers be unfavorable 
to such change, the petitioner, or petitioners, may make 
an issue thereon, and any such issue shall be tried before 
the board of commissioners, as other issues of fact are 
tried; and if, upon the report of the viewers, or upon any 
issue tried as above, the board shall be of opinion that the 
public will not be materially injured by the proposed 
change, they shall make an order granting permission to 
the petitioner, or petitioners, to make such change, and, 
upon satisfactory proof, then or thereafter, that the new 
road has been opened, and proved equally convenient for 
travelers, the board shall make an order vacating so much 
of the former highway as lies between the different points 
of intersection. 

All the costs of such proceedings shall be paid by the 
petitioner or petitioners. When a remonstrance is filed, 
and the issue found against the remonstrant, he shall pay 
all costs occasioned thereby. 

Road on county lines, how worked 1 — The statute provides 
that where a road is situated on a county line, and it is 
uncertain whose duty it is to work the road, six free- 
holders of one of the counties may present a petition to 
the board of county commissioners of such county, de- 
scribing the road as accurately as possible, and showing 



'IE. S. 1876,538. 



112 HIGHWAYS. 



that in consequence of such uncertainty the road has not 
been worked for some length of time, the board must ap- 
point two disinterested persons as commissioners, whose 
duty it will be to employ the county surveyor, with whom 
they will act in the discharge of their duties. 

Duties of county auditor. — The auditor of such county 
must immediately give notice by letter, through the audi- 
tor, to the board of commissioners of the other county 
upon whose border such road is situated, of the filing of 
such petition, and giving a copy of it, and also giving a 
copy of the appointment of the two commissioners, refer- 
ing to the act of the legislature approved March 3, 1859, 
as his authority for so doing, whereupon it is the duty of 
county board thus notified, at their first session, to appoint 
two like commissioners, and the four persons so appointed 
may, in case of disagreement, select a fifth person, and 
they must also fix a time when the joint commissioners shall 
meet and return notice of their action. 

Duties of commissioners. — At the time designated the four 
commissioners and surveyor shall meet at the north or 
west end, as the case may be, of such road as described in 
the petition, who having been first sworn according to law, 
shall proceed carefully to examine the condition and loca- 
tion of the road, and if practicable shall fix the center of 
the road upon the county line ; having surveyed the whole 
line of the road, they shall, as near as possible, make an 
equal division of it, taking into consideration the amount 
of labor presumed to be necessary to keep it up, as well 
as the length thereof, and mark the spot by fixing a stone 
firmly in the ground, and shall determine which of the 
respective counties shall each work the respective division 
thus designated. 

Beport of commissioners to county boards. — The commis- 
sioners shall make out and sign a report of the proceed- 
ings, describing by metes and bounds the portions of 
the road to be worked by each county, a copy of which 



HIGHWAYS. 113 



shall be duly transmitted to the hoard of county commis- 
sioners of each of the two counties, and shall be by them en- 
tered upon record, and they shall notify the trustees of the 
township or townships interested, furnishing them a copy 
of the reports of the joint commissioners, that it is hereby 
made their duty to open and work said road as other roads 
in the townships are worked as the law requires ; and the 
joint commissioners shall receive each, for their services, 
one dollar and twenty-five cents per day for each day 
they may have been engaged in performing their duties 
herein required, and the surveyor shall receive his lawful 
fees, to be paid out of the county treasury of the respect- 
ive counties. 



FORMS. 
Form of Eeport of Viewers. 

To the Honorable Board of Commissioners of the 
County of Dearborn : 
We, the undersigned, viewers appointed by your honora- 
ble board to view a certain proposed highway in the town- 
ships of Miller and York, as prayed for in the petition of 
Lorenzo D. Leming and others, hereby report that, in 
pursuance of the command of the precept issued to us, we 
met on the day of , 1877, at , and, after 

being duly sworn, proceeded to view the location and route 
of said proposed highway, and being of the opinion, upon 
such examination, that said highway would be of public 
utility, we proceeded to lay out and mark the same as fol- 
lows : [Here describe the road fully, giving the beginning, the 
routes and bounds, the course and distance and termination] 
And we therefore recommend that said highway be estab- 
lished according to law. Charles Bewton, 

E. M. Hargitt, 
John Shanks, 

Viewers. 



114 HIGHWAYS. 



In laying out and describing the highway, the viewers 
should have the assistance of a practical surveyor, especi- 
ally if the highway to be laid out be lengthy. If the 
viewers report that the proposed highway is not of public 
utility, no description of the grounds is, of course, neces- 
sary. 

Any person, through whose lands the proposed highway 
may run, and who will sustain damage thereby, may re- 
monstrate against the opening of the road, and the re- 
monstrance may be substantially as follows : 

Form of Bemonstrance by Party Aggrieved. 

In the matter of the petition of 
Lorenzo D. Leming and others, 
for opening highway. 

To the Honorable Board of Commissioners of the 
County of Dearborn: 
Your petitioner, Samuel McElfresh, respectfully repre- 
sents to your honorable board that he is the owner of the 
following tract of land, through which the highway pro- 
posed by said petitioners will pass, to wit : [Here describe 
the land], and that his said lands will be greatly injured 
and damaged, if said highway is opened through the same 
as in said petition prayed for, and he hereby remonstrates 
against the laying out of said highway, on account of the 
injury and damage that will be thereby done to his said 
premises. Samuel McElfresh. 

Reviewers will thereupon be appointed by the county 
board, to assess the damages resulting to the remonstrant's 
land, and, in case the reviewers find that he will be dam- 
aged by the opening of the highway, their report will be, 
in substance, as follows : 



HIGHWAYS. 115 



In the matter of the petition of Lorenzo 
D. Lerning and others, for location of 
a highway. 

To the Honorable Board of Commissioners op the 
County of Dearborn : 
The undersigned, appointed by your board to review the 
said proposed highway and assess the damage, if any, sus- 
tained by Samuel McElfresh, by reason of the opening of 
said highway through his lands, hereby report that we have 
made clue examination of said proposed highway, and of the 
lands of the remonstrant over which the same will pass, 
and we are of opinion, from such examination, that he will 
sustain damage by the opening of said highway, and we 
have assessed the amount thereof at two hundred dollars 
[or, we are of the opinion that he will not sustain any dam- 
age by reason of the opening of said highway]. 

Egbert Mason, 
Isaac Hayes, 
David Frazier. 

Any freeholder of the county, residing along the pro- 
posed highway, may also remonstrate, on the ground that 
the highway will not be of public utility. 

The form of the remonstrance will, in such case, be as 
follows : 

In the matter of the petition of Lorenzo 
D. Leming and others, for location of 
a highway. 

To the Honorable Board of Commissioners of the 
County of Dearborn : 
The undersigned, who resides in the county of Dearborn, 
and along the line of the proposed highway described in 
said petition, hereby remonstrates against the opening of 
the same, upon the ground that such proposed highway 
will not be of public utility. 

.Robert Lazenby. 



116 HIGHWAYS. 



Upon the filing of the remonstrance with the county 
board, reviewers will be appointed who will again view the 
proposed highway, and report as they may find the fact 
to be. Any person who is entitled to remonstrate against 
the opening of a highway, may include both grounds of 
objection in the same remonstrance. 



JUSTICES OF THE PEACE. 117 



CHAPTER XL 

JUSTICES OF THE PEACE. 1 

The board of county commissioners of each county shall 
determine the number of justices of the peace in each 
township of their respective counties, by proper orders of 
record, but the number shall not exceed three for each 
township, and one in addition thereto for each incorporated 
town therein, and two in addition for each incorporated 
city therein. In case the county board assign an addi- 
tional justice to a township because it contains an incor- 
porated town or city, they may require that such justice 
shall reside in such town or city, but such justice must be 
elected by the voters of the entire township, and it is dis- 
cretionary with the commissioners to require him to reside 
in the town or city. 

Number may be reduced. — The board of commissioners 
may reduce the number of justices in^any township where 
they deem it expedient to do so, but the reduction in num- 
ber shall not operate to remove any justice from office. 

When, by any change in the township, a justice is 
brought within the limits of a township other than the one 
in which he was elected, he shall serve out his term of of- 
fice as one of the justices thereof. 

Vacancy in office, how filled. 2 — When a vacancy shall oc- 
cur in the office of justice in any township, the board of 
commissioners of the county shall fill the same by appoint- 
ment, which appointment, shall be certified by the county 
auditor to the governor, who will thereupon issue a com- 
mission to the person appointed, who will serve until his 
successor is elected and qualified. 

When elected, and notice .of election. — Justices of the peace 

*2 R. S. 1876, 602. 2 2 R. S. 1876, 603. 



118 JUSTICES OF THE PEACE. 

are elected on the day of the April election next preceding 
the time at which a vacancy in the office will occur, or at 
the election next succeeding the creation of the office, and 
the clerk of the circuit court must give the township trustee 
at least thirty days' notice of the time when a justice is to 
be elected which shall be sufficient authority to the board 
of judges to hold the election and make legal return there- 
of. ■ The sheriff must also give notice of such election by 
posting up notices in at least three public places in such 
township, and by delivering a copy to the inspector of 
elections in such townships. 

Justices of the peace hold their office for four years, and 
will not be eligible to any office under the state during the 
term for which they shall have been elected, other than a 
judicial office. 

Bond of justice. — Justices of the peace are required to 
to give bond in such sums as may be required by the clerk 
of the circuit court, not less than two thousand dollars nor 
exceeding six thousand dollars, conditioned for the faith- 
ful discharge of the duties of the office, and for the pay- 
ment to the proper person of all money which may come 
to their hands by virtue of such office. 

Jurisdiction in civil cases. — Justices have jurisdiction in 
civil cases where the debt or damages claimed, or the value 
of the property sought to be recovered, does not exceed two 
hundred dollars, and they have jurisdiction to render judg- 
ment by confession for any sum not exceeding three hun- 
dred dollars. 

They have no jurisdiction in cases of slander, malicious 
prosecution, or breach of marriage contract, nor in any 
case where they are related by blood or marriage to either 
party within the degree of second cousin. 

Jurisdiction as to territory. — The jurisdiction of justices 
in civil cases is limited to their respective townships, unless 
otherwise provided by statute.. In criminal cases they 
have jurisdiction throughout their respective counties. 



JUSTICES OF THE PEACE. 119 

May administer oaths and solemnize marriages in county. — 
Justices, in their respective counties, may solemnize mar- 
riages, and also, within their counties, administer oaths in 
all cases where an oath m?y be required. 

Mecord books. 1 — Justices of the peace are entitled to re- 
ceive from the county commissioners suitable books in 
which to keep a record of all legal proceedings. 

designation. — The resignation of a justice must be de- 
livered to the clerk of the circuit court, and may be in the 
following form : 

To John A. Conwell, Esq., 

Clerk of the Dearborn Circuit Court: 

I hereby tender my resignation as a justice of the peace 
of township, in said county, to take effect on the 

first day of January, 1578. 

September 11, 1877. Bichard Hubbard. 

When may act as coroner. 2 — In case where the coroner is 
absent from county, or is unable to attend, any justice of 
the peace of the county may hold inquests, and perform all 
the duties of the coroner. 

1 Acts 1877, Special Session, 53. 2 2 R. S. 1876, 22. 



120 poor. 



CHAPTER XII. 

POOR. 

Each county must support its own poor. 1 — Every county 
must relieve and support all poor and indigent persons law- 
fully settled therein, whenever they stand in need thereof, 
and the board of county commissioners must raise money 
for the support and employment of the poor. 

Overseers of the poor. — The township trustees of the sev- 
eral civil townships of the state are made by statute over- 
seers of the poor within their respective townships, and 
every trustee in discharging the duties prescribed by stat- 
ute for the relief of the poor, is designated " overseer of the 
poor." All suits and proceedings in favor of or against 
any such trustee pertaining to, or connected with, the poor 
of his township, in favor of, or against, such township, 
shall be conducted in its corporate name. 

Legal settlements, how acquired. — The statute provides, 
that legal settlements may be acquired in any county, so 
as to oblige such county to relieve and support the person 
acquiring such settlement, in case they are poor and stand 
in need of relief as follows: 

First. A married woman shall always follow and have 
the settlement of her husband, if he have any within the 
state; otherwise, her own at the time of marriage, and if 
she then had any settlement, it shall not be lost or sus- 
pended by the marriage ; and, in case the wife shall be re- 
moved to the place of her settlement, and the husband shall 
want relief, he shall receive it in the place where his wife 
shall have the settlement. 

Second. Legitimate children shall follow and have the 
settlement of the father, if he have any within the state, 

UR.S, 1876,676. 



POOR. 121 



until they shall gain a settlement of their own ; but, if the 
father have no settlement, they shall, in like manner, fol- 
low and have the settlement of their mother, if she have 
any. 

Third. Illegitimate children shall follow and have the 
settlement of their mother, at the time of their birth, 
if she then have any within the state ; but neither legit- 
imate nor illegitimate children shall gain a settlement 
by birth in the place where they were born, unless their 
parent or parents had a settlement therein at the time. 

Fourth. Every male person, and every unmarried female 
over the age of twenty-one years, who shall have resided 
in any county in this state one whole year without inter- 
ruption, shall thereby gain a settlement in such county. 

Fifth. Every minor whose parent, and every married 
woman whose husband has no settlement in this state, who 
shall have resided one whole year without interruption, in 
any county in this state, shall thereby gain a settlement 
in such county. 

Sixth. Every minor, who shall be bound as an appren- 
tice to any person, shall immediately" upon such binding, 
if done in good faith, thereby gain a settlement where his 
or her master or mistress has a settlement. 

Seventh. Every settlement, when once legally acquired, 
shall continue until it shall be lost and defeated by ac- 
quiring a new one in this state, or by willful and uninter- 
rupted absence from the county in which such legal set- 
tlement has been gained, for one whole year or upward ; 
and upon acquiring a new settlement, or upon the hap- 
pening of such willful and uninterrupted absence, all for- 
mer settlements shall be defeated and lost. 

Duty of overseer in counties without a poor-house. — The 
overseer of the poor in each township is charged with the 
care and oversight of all poor persons in his township so 
long as they remain a county charge, and must see that 
they are relieved and properly cared for, as required by 



122 poor. 



law. In counties where there is no common poor-house 
established by law, the overseers of the poor are required, 
two weeks preceding the first Monday of May, in each 
year, to give public notice, by having published in the 
newspaper or newspapers in their respective counties, or 
by posting upon the court-house door and in other public 
places in such counties, an advertisement certifying the 
poor that are to be provided for, and asking for sealed pro- 
posals for their maintenace during said year; which sealed 
proposals shall be opened and acted on by said overseers on 
said day; but nothing herein contained shall prohibit any 
overseers of the poor from receiving and accepting propo- 
sitions, at any time, for the keeping of such poor persons as 
may in the interim become a county charge, or of reject- 
ing the propositions of such persons as they may know to 
be unable to fulfill their obligations to said poor. 

When county commissioners must give assistance. — The 
board of county commissioners may, in their discretion, 
allow and pay to poor persons who may become charge- 
able as paupers, and who are of mature years, and sound 
mind, and who, from their general character, will probably 
be benefited thereby, and also to the parents of idiots, and 
of children otherwise helpless, requiring the attention of 
their parents, and who are unable to provide for said chil- 
dren themselves, such annual allowance as will not exceed 
the charge of their maintenance in the ordinary mode, the 
board taking the usual amount of charges in like cases as 
the rule for making such allowance. 

Duty of overseer when poor are ill-treated,. — It is the duty 
of the overseers of the poor, on any complaint made to 
them in behalf of the poor, to examine into the ground of 
such complaint; and if, in their judgment, the poor have 
not been sufficiently provided with the common necessaries 
of life, or have, in any respect, been ill-treated by the per- 
son or persons under whose charge they shall have been 
placed, to withhold any part of the compensation allowed 



poor. „ 123 



to such persons as such overseers may deem reasonable and 
proper, and remove the poor and place them in the care of 
some other person. 

Poor book. — The overseers of the poor must enter in the 
poor book of their respective townships, all poor persons 
in their townships who are -unable to take care of them- 
selves, and who will, in their judgment, be entitled to the 
benefit of the provisions of this act, together with the 
date of such entry. 

Persons may apply to be placed on poor list. — If any poor 
person shall suppose that he is entitled to the benefit of the 
laws for the relief of the poor, and the overseers of the 
poor of the township in which such person resides shall re- 
fuse to give him the benefit thereof, upon application of 
such person, the board of county commissioners may, if 
they think proper, direct the overseers to receive him upon 
the poor list on his application therefor. 

Where poor person's residence is not known. — If any one 
within the description of poor persons, as defined by stat- 
ute, shall be found in any county or township, and the over- 
seers of the poor of such township are unable to ascertain 
and establish the last place of legal settlement of such 
person, they must provide for such poor person in the same 
manner as other poor persons are. 

Temporary relief, when may be granted. — Whenever any 
person, entitled to temporary relief as a pauper, shall be 
in any township in which he has not a legal settlement, the 
overseers of the poor thereof may, if the same is deemed 
advisable, grant such relief, by placing him or her tempo- 
rarily in the poor-house of such county, if there be any, to 
be employed therein so far as he or she is capable of any 
employment. 

When poor person may be removed. — Upon complaint of 
any overseer of the poor, any justice of the peace may, by 
his warrant, directed to, and to be executed by, any con- 
stable, or by any other person therein designated, cause 



124 poor. 



any poor person found in the township of such overseers 
likely to become a public charge, and having no legal set- 
tlement therein, to be sent and conveyed, at the expense 
of the county, to the place where such person belongs, if 
the same can be conveniently done; but if he can not be 
removed, such person shall be relieved by said overseers 
whenever such relief is needed. 

The complaint in such case may be, in substance, as fol- 
lows : 

Form of Complaint for Eemoval of Pauper. 

State of Indiana, Dearborn county : 

Manchester township, of Dearborn county, by George 
W. Eoberts, trustee of said township, complains of Denny 
Dusky, and says, that he is a poor person, and wholly des- 
titute of means of support, and is likely to become a pub- 
lic charge, and that he has no legal settlement in said 
county, and that he is a resident of Brookville township 
in the county of Franklin, to which place he should be 
sent ; wherefore he prays that said Dusky may be sum- 
moned, and be required to show cause why he should not 
be removed to said county of Franklin. 

Manchester Township of Dearborn County, 

By George W. Eoberts, 

Trustee. 

Upon the filing of the complaint, the justice should issue 
a summons to the person complained of, directed to some 
constable, who should forthwith serve the same, and, on 
the return day named in the summons, the justice should 
hear the evidence and make such order as the facts proven 
will warrant. 

Order of removal may be appealed from. — If the overseers 
of the poor, of any township, in any county in the state to 
which any pauper shall have been removed, shall feel ag- 
grieved by such order of removal, they may, at any time 



poor. 125 



within twenty days after such removal shall be known to 
them, appeal from the decision of the justice ordering the 
removal, to the circuit court of the county from whence 
the removal was ordered to be made. 

Notice of the appeal must be given to the overseer of 
the poor who procured such order of removal, of the suf- 
ficiency of which the circuit court will determine before 
the appeal is heard. 

If the order of removal is defective, the circuit court 
will permit an amendment without costs. 

Overseers must receive persons sent by justice. — When any 
person is removed from any place to another within the 
state, by warrant or order under the hand and seal of any 
justice of the peace, the overseers of the poor of the town- 
ship or place to which the person shall be removed, are re- 
quired to receive him, if he have a legal settlement in 
their county. 

How money on contracts must be paid. — In cases where 
contracts for the support of the poor have been made, the 
overseer must make return to the county auditor of the 
sums of money required for the support of the poor of 
their respective townships, within fifteen days after the 
making of any such contract, which sums must be paid 
quarterly out of the county treasury, upon the order of the 
board of county commissioners, as other claims are paid. 

Overseers must settle with county board. — Overseers of the 
poor must make settlement with the county board, at least 
once a year, and oftener if required to do so by such board. 

When non-residents may be relieved. — It is the duty of the 
overseers of the poor, on complaint to them that any per- 
son, not an inhabitant of their township, is lying sick 
therein, or in distress without friends or money, so that he 
is likely to suffer, to examine into the case of such person, 
and grant such temporary relief as the nature of the same 
may require ; and if any person shall die within any town- 
ship, without money or other means necessary to defray 



126 poor. 



the funeral expenses, the overseers of the poor of such 
township, must employ some person to provide for, and 
superintend, the burial of such deceased person ; and the 
necessary and reasonable expenses thereof will be paid by 
and upon the order of such overseers; and the board of 
county commissioners of the proper county, at any meet- 
ing of the board, must examine all claims of such charac- 
ter, and, if found reasonable, direct their payment out of 
the county treasury. 

County asylum. — The board of county commissioners of 
any county may, when they deem it advisable, purchase a 
tract of land, in the name of their respective counties, and 
thereon build, establish, and organize an asylum for the 
poor, and employ some humane and responsible person or 
persons, resident in their respective counties, to take charge 
of the same, upon such terms, and under such restrictions, 
as the board shall consider most advantageous for the in- 
terest of the county ; who shall be called the "superintend- 
ent of the county asylum." And where two or more coun- 
ties shall have jointly purchased any tract of land, and 
erected an asylum for the poor of their several counties, 
they have the power to continue such joint ownership dur- 
ing their pleasure; and the county commissioners of two 
or more counties may jointly purchase lands, erect asy- 
lums, or take other necessary and proper measures for the 
relief and support of the poor within the counties forming 
such joint ownership. 

Sow money shall be raised to build asylums. — To raise the 
sum necessary for the purchase of land and the erection 
and furnishing of the buildings for such asylums, the 
boards of county commissioners, in the several counties, 
have power to assess a tax on property liable to be assessed 
for raising a county revenue, not exceeding one-fourth in 
addition to the rates at which such property may be as • 
sessed by the existing laws. 



poor. 127 



Paupers to be kept in asylum except in certain cases. — As 
soon as the asylum is ready for occupancy, the board must 
order all persons who have become permanent charges 
upon the county as paupers to be removed to such asylums, 
and must take such measures for the support and employ- 
ment of such persons as may to the board seem advisable. 
It is, however, further provided that the board of county 
commissioners of any county, in their discretion, upon 
satisfactory proof being made, that any resident of their 
counties has lost his or her eyesight, or by casualty has be- 
come otherwise unable to support himself or herself, by 
reason of bodily infirmity, and that he or she has a wife 
or husband, and is an object of public charity, may make 
an order that the county treasurer pay over such sums of 
money to such person, or to any person having the keep- 
ing of such person, out of the funds of their respective 
counties, as they may deem necessary and proper for his 
or her support, so as not to separate them from their fami- 
lies by being placed in the county poor-house. 

Duty of superintendent and county board. — The superin- 
tendent or superintendents of county asylums must give 
bond, with freehold security, to the county board, in the 
penalty of five hundred dollars, conditioned for the faith- 
ful discharge of his or their duty; and must make to the 
board, at their sessions in the spring and fail, annually, a 
detailed report in writing, of the time and manner of the 
admission of each pauper ; their health and fitness to la- 
bor ; the result of their industry, and the expenses in- 
curred ; and it shall be the duty of the members of such 
board, in person, annually to inspect the asylum with regard 
to its fitness, in all respects, for the objects of its establish- 
ment. It is the duty of the superintendent or superin- 
tendents to receive into his or their care and custody all 
persons who may become a county charge as paupers, and 
to take such measures for the employment and support of 
such paupers, and to perform such other duties as the board 



128 poor. 



of county commissioners may from time to time order and 
direct, consistent with the laws of the state. Such super- 
intendents must also bind out such poor children as, from 
time to time, may fall under their care and charge, and 
they must see that the children so bound are properly 
treated by the persons to whom they are bound, and to 
take means for legal redress in case of maltreatment. It 
is also the duty of such superintendents to direct and super- 
intend the education of such poor children, and it is their 
duty to send them to the common school in the township 
in which the asylum is situated, during the continuance 
of its session ; and whenever it is necessary or practicable, 
poor children of the asylums who can not be bound out, 
or whom it may not be expedient to bind out as appren- 
tices, shall be educated at such asylums. 

When overseers must present their accounts. — The overseers 
of the poor must annually, at the June session of the board 
of county commissioners of their respective counties, pre- 
sent their accounts, and make report to the board generally 
of their proceedings for the past year, and when the board 
shall audit or allow any claim or account presented by such 
overseers of the poor, they shall draw on the county treas- 
urer thereof, whose duty it will be to pay the same out of 
any money in the county treasury, not otherwise appro- 
priated, and the overseers must meet once in each year 
with the county board, and oftener if required by such 
board. 

Compensation of overseers of the poor. — The twentieth 
section of the act for the support of the poor, provides that 
overseers shall be allowed one dollar per day for their ser- 
vices rendered in the discharge of their duties, to be al- 
lowed by the board of commissioners when satisfied t' at 
such services have been rendered ; and the twenty-third 
section authorizes the board to allow overseers a reasonable 
compensation. The two sections, taken together, perhaps 
should be construed to mean that, for all ordinary service, 



poor. 129 



one dollar per day must be the rate of compensation, but 
that, in special cases, where justice requires it, the board 
may make a further reasonable allowance. Overseers of 
the poor can not, in any case, charge for their services as 
such, the fees allowed them by law as township trustees. 

Duty of overseer upon removal from township. — If any 
overseer of the poor shall remove from his township, he 
must resign his office, and should at once inform the board 
of county commissioners, if in session, or the county audi- 
tor, if such board is not in session, so that a successor may 
be appointed, to whom he must deliver all books, papers, 
and other things pertaining to his office. 



130 SCHOOLS. 



CHAPTER XIII. 

SCHOOLS. 

School corporations. — The statute provides that each civil 
township, and each incorporated town, or city, in the state 
shall be a distinct municipal corporation for school pur- 
poses by the name of the civil township, town, or city, cor- 
poration respectively, and by such name may make con- 
tracts, sue and be sued in any court having jurisdiction, 
and the trustee of such township and the school trustees 
for towns and cities, must perform the duties of clerk and 
treasurer for school purposes for their respective corpora- 
tions. Each township, town, and city is therefore a cor- 
poration for school purposes, separate and distinct from the 
civil township, town, or city organization. When a town 
is incorporated, school trustees should beat once appointed, 
and if the incorporation is after the enumeration of the 
children and the levy of taxes, the board of trustees and 
the trustee of the township in which the town is located 
should make an equitable division of the school revenues. 

School trustees of towns and cities. — The common council 
of each incorporated city and the board of trustees of each 
incorporated town must, at their first regular meeting in 
June, elect three school trustees, who will hold their office 
one, two, and three years respectively, as the trustee shall 
determine by lot at the time of their organization, and, an- 
nually thereafter, shall elect one school trustee, who will 
hold his office for three years. Such trustees will constitute 
the school board of the city or town, and before entering 
upon the duties of their office, shall take an oath, faithfully 
to discharge their duties. They are required to meet within 
five days after their election, and reorganize by electing 
one of their number president, one secretary, and one treas- 



SCHOOLS. 131 



urer. The treasurer, before entering upon the duties of his 
office, shall execute a bond to the acceptance of the county 
auditor, conditioned as in ordinary official bonds, with at 
least two sufficient freehold sureties, who shall not be mem- 
bers of the board, in a sum not less than double the amount 
of money which may come into his hands within any one 
year by virtue of his office. The jxresident and secretary 
shall each give bond with like sureties, to be approved by 
the county auditor, in any sum not less than one-third of 
the treasurer's bond. And each year, within five days 
after the election of a member, the board must reorganize 
and execute new bonds for the coming year. 

All vacancies that may occur in the board of school 
trustees, must be filled by the common council of the city, 
or board of trustees of the town. But the appointment to 
fill a vacancy will only be for the unexpired term. 

Compensation of trustees. — Trustees shall receive for their 
services such compensation as the common council of the 
city or the board of trustees of the town may deem just, 
which compensation shall be paid from the special school 
revenue of the city or town. 

Duty of auditor. — In accepting the bonds of trustees, the 
auditor must look to their sufficiency to secure all the 
school revenues that may come to their hands, and the au- 
ditor must report the name and post-office address of each 
trustee to the superintendent of public instruction. 

The seventh section of the school law provides that, "in 
case of a vacancy in the office of trustee, the county audi- 
tor shall appoint a person to fill the same." 

In view of the provisions of the fifth section of the same 
law, which requires the common council of a city, or the 
trustees of a town, to fill vacancies in the board of school 
trustees, the language quoted must be construed to apply 
to vacancies in the office of township trustee. 

By the ninth section of the act providing for the mode 
of doing township business, the board of county commis- 



132 SCHOOLS. 



sioners is required to fill vacancies in the office of town- 
ship trustee, occurring while the board is in session. 1 The 
several provisions of the statutes being construed together, 
the law would seem to be, that in case of a vacancy in the 
board of school trustees of a city or town, the common 
council of the city, or the board of trustees of the town, as 
the case may be, will fill it; and in case of a vacancy in 
the office of township trustee, it must be filled by the board 
of county commissioners, if in session ; if not, then by 
the county auditor. 

School trustees must keep accounts and make reports. — The 
school trustees of every township, incorporated town or 
city, must receive the special school revenue belonging 
thereto, and the revenue for tuition which may be appor- 
tioned to their township, town, or city, for tuition in t l .e 
common schools, and pay out the same for the purpose for 
which such revenues were collected and appropriated. 
Trustees are required to keep accurate accounts of the 
receipts and expenditures of such revenues, and shall ren- 
der to the county commissioners annually, on the first 
Monday after the second Tuesday in October, and as much 
oftener as they may require, a report thereof in writing 
for the year then ending. The board of commissioners 
shall, that day, hold a session to receive the reports; they 
must clearly and separately state : 

First. The amount of special school revenue, and of 
school revenue for tuition, on hand at the commencement 
of the year then ending. 

Second. The amount of each kind of revenue received 
within the year, giving the amount of tuition revenue 
received at each semi-annual apportionment thereof. 

Third. The amount of each kind of revenue paid out 
and expended within the year. 

Fourth. The amount of each kind of revenue on hand 
at the date of the report, to be carried to the new account, 



HB.S. 1876, 901. 



SCHOOLS. 133 



and shall, with such report, present and file a detailed ac- 
count current of the receipts and payments for the year, 
and support the same by proper vouchers, which report 
and account current shrll each be verified by affidavit, 
and when the county commissioners are satisfied that such 
report is full, accurate, and right, in all respects, and that 
the account is just and true, they shall allow and pass the 
same, which shall have the effect to credit the trustee for 
the expenditures. A copy of the report, as passed and 
allowed by the county commissioners, must, within ten 
clays after its date, be filed by the trustee with the county 
superintendent of the county; and, upon failure of the 
trustee to discharge any of the duties required of him, rel- 
ative to schools and school revenues, the board of county 
commissioners shall cause suit to be instituted against him, 
on his official bond, and, in case of recovery, the court 
rendering the judgment must assess upon the amount 
thereof ten per cent, damages, to be included in" the judg- 
ment. 

Trustees must keep a record. — Township trustees, and the 
board of school trustees of cities and towns, must keep a 
record of their proceedings relative to the schools, including 
all orders and allowances on account thereof; including, 
also, accounts of all receipts and expenditures of school 
revenue, distinguishing between the special school revenue 
belonging to their township, town, or city, and the school 
revenue for tuition, which belongs to the state, and by it 
apportioned to their township, town, or city, which rev- 
enue for tuition they shall not permit to be expended for 
any other purpose, nor even for that purpose in advance 
of its apportionment to their respective corporations. 

Trustees to make statement. — All school trustees are re- 
quired, immediately after their annual settlements with the 
county commissioners, in October, to make a full statement 
of- their receipts and expenditures for the year preceding, 



134 SCHOOLS. 



relative to their schools. The duties of trustees in refer- 
ence to this statement, are not clearly denned by statute. 

The superintendent of public instruction is of the opin- 
ion that such statement should be made separately from the 
report of trustees required by the eleventh section of the 
act providing for the mode of doing township business, and 
published at the same time, and in the same manner. 1 
Trustees should conform to his construction of the statute. 

Powers of school trustees. — The trustees shall take charge 
of the educational affairs of their respective townships, 
towns, and cities, employ teachers, and shall establish and 
locate, conveniently, a sufficient number of schools for the 
education of the children therein, and build, or otherwise 
provide, suitable houses, furniture, apparatus, and other 
articles and educational appliances necessary for the thor- 
ough organization and efficient management of the schools. 
They may also establish graded schools, or such modifica- 
tions of them as maybe practicable, and provide for admis- 
sion into the higher departments of the graded school, 
from the primary schools of their townships, such pupils 
as are sufficiently advanced for such admission. They shall 
have the care and management of all property, real and 
personal, belonging to their respective corporations for 
common school purposes, except the congressional township 
school lands, which lands shall be under the care and man- 
agement of the trustee of the civil township to which such 
lands belong. 

School superintendents in cities and towns. — The school 
trustees of incorporated towns and cities shall have power 
to employ a superintendent for their schools, whose salary 
shall be paid from the special school revenue, and to pre- 
scribe his duties, and to direct in the discharge of the same. 

Joint graded schools may be established. — The school 
trustees of two or more distinct municipal corporations for 
school purposes, have power to establish joint graded 



'IB. S. 1876,901. 



SCHOOLS. 135 



schools, or such modifications of them as may be practi- 
cable, and provide for admission into the higher depart- 
ments of their graded schools, from the primary schools of 
their corporations, such pupils as are sufficiently advanced 
for such admission. The trustees shall have the care and 
management of such graded schools, and they will select 
the teachers therefor. They have power to purchase suit- 
able grounds for such graded schools, and erect suitable 
buildings thereon, and the title to all such property ac- 
quired for such purposes shall vest jointly in the corpora- 
tions establishing the graded schools. 

All township schools to be taught an equal length of time. — 
All schools in a township must be taught an equal length 
of time, as nearly as the same can be done, without regard 
to the diversity in the number of pupils at the several 
schools, or the cost of the school, and each school shall be 
numbered by the proper trustee as school No. — . 

School trustees may levy tax for certain purposes. — The 
trustees of the several townships, towns, and cities, have 
the power to levy a special tax, in their respective town- 
ships, towns, or cities, for the construction, renting, or re- 
pairing of school houses, providing furniture, school appa- 
ratus, and fuel therefor, and for the payment of other nec- 
essary expenses of the school, except tuition j but no tax 
shall exceed the sum of fifty cents on each one hundred 
dollars' worth of taxable property, and one dollar on each 
poll, in any one year, and the income from the tax is de- 
nominated the special school revenue ; and any tax-payer 
who may choose to pay to the treasurer of the township, 
town, or city wherein he has property liable to taxation, 
any amount of money, or furnish building material for the 
construction of school houses, or furniture, or fuel therefor, 
shall be entitled to a receipt therefor from the trustee of 
the township, town, or city, which shall exempt the tax- 
payer from any further taxes for that purpose until the 
taxes levied for such purposes, would, if not thus paid, 



136 SCHOOLS. 



amount to the sum or value of the materials so furnished, 
or amount so paid. The trustees are not bound to receive 
the building material, furniture, or fuel, unless they see 
proper to do so, but they are bound to receive the 
money when offered, and must execute a receipt therefor 
to the person paying the same. 

County auditor shall make assessments. — The county audi- 
tor must, upon the property and polls liable for taxation 
for state and county purposes, make the proper assessments 
of special school tax levied by the trustee, in the same man- 
ner as for state and county revenue, and shall set down the 
amount of the tax on his tax list and duplicate thereof, as 
other taxes are set down, in the appropriate columns, and 
he must extend the assessment to the taxable property of* 
the person transferred, which is situated in the township, 
town, or city to which the transfer is made, and to the 
property and poll of the person transferred, situate in the 
township, town, or city in which the person taxed resides, 
according to the rate and levy thereof, in the township, 
town, or city to which the transfer is made, and for its use ; 
and the tax shall be collected by the county treasurer as 
other taxes are collected, and shall be paid, when collected, 
to the treasurer for school purposes of the proper town- 
ship, town, or city, upon the warrant of the county audi- 
tor ; and to enable county auditors correctly to assess such 
tax, the county superintendents of the several counties 
must, at the time they make out and report to the auditor, 
the basis of the apportionment of school revenue for tui- 
tion, make out and report to the auditors a statement of 
transfers which have been made for school purposes. 

Trustees must make enumeration. — The trustees of the 
several townships, towns, and cities shall, between the first 
of March and the first of 3Iay in each year, make an 
enumeration of the children, white and colored, within 
their respective townships, towns, and cities, between the 
ages of six and twenty-one years, exclusive of married 



SCHOOLS. 137 



persons ; and in making such enumeration, the trustee 
must distinguish between the white and colored children, 
enumerating them in separate lists, and shall list the names 
of parents, guardians, or heads of families, male or female, 
having charge of such children ; and opposite each name, 
in appropriate columns, he must enter the whole number 
of such children in charge of the person so named, speci- 
fying particularly the number of males, the number of fe- 
males, the number of the school to which such person is 
attached for school purposes, and the number and initials 
which designate the congressional townships in which such 
person resides, including in the list and enumeration the 
names of persons who have been transferred to the town- 
ship, town, or city from other townships, towns, or cities, 
and the enumeration of their children, and excluding there- 
from the names and number of children of such persons 
as have been transferred from the township, town, or city, 
and each township trustee must make inquiry of each pa- 
rent, guardian, or head of a family, having charge of chil- 
dren between the ages aforesaid, whose residence has been 
changed, or whose children have become subject to be enu- 
merated for the first time since the last enumeration, to 
which school such person desires to be attached, and, in 
case the location of a school in the township has been 
changed since the last enumeration, the trustee must make 
the same inquiry of the persons whose school privileges 
are affected by the change. Trustees of cities and towns 
are not required to make such inquiry when they make 
their enumeration. The persons listed in each city and 
town are considered as forming but a single school district, 
distinct from the township in which they are situated. No 
person, after having selected the school to which he or 
she desires to be attached, can be transferred to, or have 
the privilege of, any other school, except by the consent of 
the trustees, for good cause shown. 

It has been held that only children who reside or aro 



138 SCHOOLS. 

domiciled in the township in which the enumeration is 
made are entitled to the benefit of the common schools of 
such township. Children of parents residing in another 
state can not be sent into this state, merely for the purpose 
of acquiring an education, and be entitled to enjoy the 
benefits of the common schools, even if a person residing 
in the state should be appointed guardian of such chil- 
dren. 1 The superintendent of public instruction, however, 
holds that the statute must not be so construed as to ex- 
clude from the schools the children of persons who, in good 
faith, move into a district after the enumeration is made. 

When trustees may transfer from one township to another.— 
When persons can be better accommodated at the school of 
an adjoining township, or of any incorporated town or 
city, the trustee of the town or city in which such persons 
reside, shall, if such persons so request, at the time of mak- 
ing the enumeration, transfer them, for educational pur- 
poses, to such township, town, or city, and notify the trus» 
tee of such transfer, which notice shall furnish the enu- 
meration of the children of the persons so transferred ; and 
each trustee must, with his report of the enumeration, re- 
port distinctly the persons transferred to his township, 
town, or city, for school purposes, indicating in the report 
the number of children in charge of the persons trans- 
ferred, with the same particularity that is observed in the 
enumeration. 2 

Where person transferred must pay tax. — Each person so 
transferred for educational purposes, to a township, town, 
or city, in an adjoining county, must annually pay to the 
treasurer of such townshij), town, or city (when a tax is 
levied therein for the purposes aforesaid), a sum equal to 
the tax levied, computing the same upon the property and 
poll liable to tax, of such persons in the township, town,| 
or city where he resides, according to the valuation thereof, 
by the proper assessor, which payment will release his 

USInd. 14 2 26Ind. 345. 



SCHOOLS. 139 



property from special school tax, in the township in which 
he resides, and, in default of such payment, shall be de- 
barred from educational privileges in the township, town, 
or city to which he may have been transferred ; and the 
trustee thereof shall notify the trustee of the township, 
town, or city in which he (the person transferred) resides, 
of such exclusion. 

Trustee to file report with county superintendent. — Each 
trustee must, on or before the first day of May, annually, 
report to and file with the county superintendent of the 
proper county, a copy of his list and enumeration, with 
his affidavit indorsed thereon, to the effect that the same 
is, to the best of his knowledge and belief, full and accu- 
rate, and that the enumeration does not include persons 
who are less than six nor more than twenty-one years of 
age. And when a congressional township is located in 
two or more counties, the trustee of each portion thereof, 
in the several counties, must report at the same time, and 
in the same manner, to the superintendent of the county 
in which the congressional township is held in trust and 
managed. 

Teachers to report to trustees. — The teacher of each school, 
whether in township, town, or city, must, at the expiration 
of the term of the school for which the teacher shall have 
been employed, furnish a complete report to the proper 
trustee, verified by affidavit, showing the length of the 
school term, in days, the number of teachers employed, 
male and female, and their daily compensation, the number 
of pupils admitted during the term, distinguishing between 
males and females, and between the ages of six and twenty- 
one years, the average attendance, books used, and branches 
taught, and the number of pupils engaged in the study of 
each branch ; and, until such report shall have been so 
filed, such trustees shall not pay more than seventy-five 
per cent, of the wages to such delinquent teachers for their 



140 SCHOOLS. 



services. These reports are required to be made to enable 
trustees to make the reports required of them. 

Trustees must report to the county superintendent. — The 
trustees of each township, town, or city, must, annually, on 
the first day of September, report and furnish to the county 
sujDerintendent the statistical information obtained from 
teachers of the schools of their respective townships, towns, 
or cities, and embody in a tabular form the following ad- 
ditional items : The number of districts ; schools taught, 
and their grades ; teachers, male and female; average com- 
pensation of each grade ; balance of tuition revenue on 
hand at the commencement of the current year; amount 
received during the year from the county treasurer, and 
amount expended within the year for tuition, and balance 
on hand ; length of school taught within the year, in days ; 
school houses erected during the year; the cost of the 
same; the number and kind before erected and the esti- 
mated value thereof, and of all other school property; num- 
ber of volumes in the library, and the number taken out dur- 
ing the year ending the first day of September, also the 
number of volumes added thereto ; assessment on each one 
hundred dollars of taxable property, on each poll of spe- 
cial tax for school house erection, and amount of such levy; 
balance of special school revenue on hand at the commence- 
ment of the current year ; amount received during the 
year from the county treasurer; the amount of said reve- 
nue expended during the year, and balance on hand; the 
number of acres of unsold congressional school lands, 
the value thereof, and the income therefrom, together with 
such other information as may be called for by the county 
superintendent and superintendent of public instruction. 

Liability of trustee for failure to report.— On the failure 
of any trustee to make the reports to the county superin-j 
tendent, required by law, at the time and in the manner 
specified in the school law, the superintendent to whom 
the report should be made must, within one week of the 



SCHOOLS. 141 



time the next semi-annual apportionment is to be made by 
the auditor of his county, notify such officer, in writing, of 
the failure, and the auditor shall thereupon diminish the 
apportionment of such township, town, or city the sum of 
twenty -five dollars, and withhold from the delinquent 
trustee the warrant for the money apportioned to his town- 
ship, town, or city, until the delinquent report is properly 
made and filed. The trustee will be liable on his bond for 
the sum of twenty-five dollars, and for such additional 
damage as the township, town, or city may sustain by the 
stopping of the money, for which the county commission- 
ers may sue. 

Penalty for failure of trustee to perform his duties. — If 
any trustee fail to discharge any of the duties of his office 
relative to the schools, any person may maintain an action 
against him for every such offense, in the name of the 
State of Indiana, and may recover, for the use of the com- 
mon school fund, any sum not exceeding ten dollars, which 
sum, when collected, shall be paid into the county treas- 
ury, and added, by the county auditor, to such fund, and 
reported accordingly. And any person elected or ap- 
pointed such trustee, who shall fail to qualify and serve as 
such, if he has not previously served in that capacity, will 
be liable to pay the sum of five dollars, to be recovered in 
the same manner, and the money, when collected, must be 
paid into the county treasury for the benefit of the same 
fund. 

The language of the statute is, that " any person " may 
maintain the action, but it is manifest that it should not 
receive so broad a construction as the words used would 
seem to warrant, and the right to sue should at least be 
limited to residents of the township, town, or city in which 
the forfeiture occurred. The statute includes township 
trustees and members of boards of school trustees in cities 
and towns.' 

Directors, how chosen. — The voters of each school district, 



142 SCHOOLS. 



whom the statute defines to be all tax-payers, except mar- 
ried women and minors, will meet annually on the first 
Saturday in October, and elect one of their number direc- 
tor of such school, who shall, before entering upon duty, 
take an oath faithfully to discharge the same. The direc- 
tor so elected shall, within ten days after such election, 
notify the trustee of his election, and in case of failure to 
elect, the trustee must forthwith appoint a director of the 
school ; but any director so appointed may be removed 
upon a petition of three-fourths of the persons attached to 
the school, who are entitled to vote at school meetings. 

How other meetings may be held. — The voters at school 
meetings may hold other school meetings at anytime, upon 
a call of the director or any five voters. Five days' no- 
tice shall be given of such meeting by posting notices in 
five public places in the vicinity; but no meeting will be 
illegal for want of such notice, in the absence of fraud; and 
the legality of such proceedings, if called in question, must 
be determined by the trustee of the township, subject to 
an appeal to the county superintendent, whose decision is 
final. 

Power of school meetings. — Such school meeting shall have 
power to determine what branches, in addition to orthogra- 
phy, reading, writing, arithmetic, geography, English gram- 
mar, physiology, and the history of the United States, they 
desire to be taught in such school, and the time at which the 
school shall be taught : Provided, however, The tuition rev- 
enue apportioned to the school must be expended within 
the school year for which it was apportioned, which be- 
gins on the first Monday in July. Such school meetings 
shall have power to fill vacancies that may occur in the 
office of director, to direct such repairs us they may deem 
necessary in their school house, to petition the township 
trustee for the removal of their school-house to a more 
convenient location, for the erection of a new one, or the 
sale of an old one, and the lands belonging thereto, and 



SCHOOLS. 143 



upon any other subject connected therewith ; and at such 
meetings all the taxpayers of the district shall be en- 
titled to vote on all questions, except minors and married 
women. In all cases where such meetings petition the 
trustee in regard to the repairs, removal, or erection of a 
school house, they must also furnish him an estimate of 
the probable cost thereof. 

The statute, however, permits the trustee to exercise a 
sound discretion as to the propriety or expediency of 
making repairs to school houses or removing them or 
building new ones, and as to the cost thereof, notwith- 
standing any directions that may have been given at such 
meetings. 

School meetings have no authority to employ teachers or 
fix their compensation, nor is the trustee bound to employ 
the teacher designated by a school meeting, but the trustee 
is forbidden to employ a teacher whom a majority of those 
entitled to vote at school meetings have decided at any reg- 
ular school meeting they do not wish employed. School 
meetings are only held in townships, and not in cities or 
towns, and hence all the provisions of the statute in ref- 
erence to school meetings apply only to school districts 
outside of incorporated towns and cities. 

Teachers must have certificate of qualification. — Trustees 
can not employ any person to teach in any of the common 
schools of the state, unless such person shall have a license 
to teach, issued from the proper state or county authority, 
and in full force at the date of employment ; and any 
teacher who shall commence teaching any school without 
a license shall forfeit all claim to compensation out of the 
school revenue for tuition for the time he teaches without 
a license ; but if a teacher's license expires by its own lim- 
itation during the term of his employment, such expira- 
tion will not suspend the school or stop the teacher's pay. 

Dismissal of teacher.— After any school has commenced, 
if a majority of the voters of the school district petition 



144 SCHOOLS. 



the trustee to dismiss .the teacher, he shall do so upon due 
notice and for good cause shown, but not otherwise, and 
should the petition be granted the teacher will be entitled 
to his pay to the time of dismissal. 

This provision of the statute does not apply to incorpo- 
rated towns and cities, and there is no statute authorizing 
the school board of those corporations to dismiss a teacher, 
If, however, a person employed to teach a public school in 
a city or town prov.es to be incompetent, or unfit for the 
position, the board of trustees may discharge him. But 
if such teacher should claim that he was improperly dis- 
charged, and should bring an action against the school cor- 
poration to recover his wages accruing after his discharge, 
the defendant would be compelled to prove upon the trial 
that there was just cause for his dismissal, or the teacher 
would be entitled to recover. The mere fact that he had 
been discharged by the school board would be no defense 
to the action. 1 It is otherwise in case of the dismissal of a 
teacher by the township trustee. His decision, if the pro- 
ceedings have been in accordance with the statute, is con- 
clusive, unless an appeal is taken, in which case, the decis- 
ion of the county superintendent is final. 2 

Duties of director. — First. The director shall preside at 
all school meetings, and make a record of the proceedings, 
and shall act as the organ of communication between the 
inhabitants of the township and the trustee. 

Second. He shall take charge of the school house and 
property belonging to the same, under the general order 
and with the concurrence of the trustee, and preserve the 
same, and shall make all temporary repairs of the school 
house, furniture, and fixtures, and furnish fuel for the 
school, and report the cost thereof to the trustee for pay- 
ment. 

Third. He must visit and inspect the school from time to 
time, and may, when necessary, exclude any refractory 

1 42Ind. 200. 2 See27Ind. 119. 



SCHOOLS. 145 



pupil from the school, but not for a period beyond the cur- 
rent term, for disorderly conduct, and it may be, in the 
discretion of the director, for a shorter period. 

Appeal from decision of director.— The action of the direc- 
tor, in excluding a pupil from school, is subject to appeal to 
the township trustee, whose decision will be final. 

When any voter may preside at school meeting. — In the 
absence of the director at any school meeting, the voters 
present may choose one of their number to preside, who will 
perform the duties of the director. 

County superintendent. — The township trustees of the 
several townships must meet at the county auditor's office 
of their respective counties, on the first Monday of June, 
of every second year, counting from 1873, and appoint a 
county superintendent, who shall be a citizen of such 
county, whose official term will expire as soon as his suc- 
cessor is appointed and qualified, who, before entering 
upon the duties of his office, must take and subscribe an 
oath that he will faithfully perform his duties as such officer 
according to law, which oath shall be filed with the county 
auditor, and shall execute a bond, with freehold surety, to 
the approval of the county auditor, payable to the State 
of Indiana, in the penal sum of one thousand dollars, con- 
ditioned that he will faithfully discharge his duties accord- 
ing to law, and faithfully account for, and pay over to the 
proper persons, all moneys which may come into his hands 
by reason of such office, and thereupon the county auditor 
shall report the name and post-office address of the person 
appointed to the superintendent of public instruction. 

By an act of the legislature, approved March 9, 1875, it 
was attempted to amend the law so as to confer upon the 
county commissioners the power to appoint county super- 
intendents; but the amendment is probably inoperative, 
on account of a defect in the title of the amending act. 1 

1 1 R. S. 1876, 790. 



146 SCHOOLS. 



By whom and for what cause superintendent may be re- 
moved. — The board of county commissioners shall have 
power to dismiss any county superintendent for immor- 
ality, incompetency, or general neglect of duty, or for act- 
ing as agent for the sale of any text book, school furniture, 
or maps; but no county superintendent shall be dismissed 
without giving him written notice, under the hand and 
seal of the auditor, ten days before the first day of the 
term of the court of commissioners at which the cause is 
to be heard, and the notice shall state the charges preferred 
against the superintendent, the character of the instrument 
in which they are preferred, whether petition, complaint, 
or other writing, and in the name of the persons preferring 
the same. 

As the statute conferring the power to remove county 
superintendents upon the county commissioners makes no 
provision for an appeal from the order made, probably no 
such right exists. Such seems to be the effect of the later 
decisions of the supreme court. 1 

Vacancy in office , how .filled. — In case of the death, resig- 
nation, or removal of the superintendent, the county com- 
missioners, on the notice of the county auditor, must as- 
semble at the office of such auditor and elect a successor. 
The auditor will act as clerk of all elections of superintend- 
ent, and must make a record thereof in a book to be kept 
for that purpose, and must give the casting vote in case of 
a tie. 

Dulies of superintendent. — The superintendent shall ex- 
amine all applicants for license as teachers of the common 
schools of the state, by a series of written or printed ques- 
tions, requiring answers in writing, if he wishes so to do, 
and in addition to questions and answers in writing, ques- 
tions may be asked and answered orally ; and if from the 
ratio of correct answers and other evidences disclosed by 

1 For authorities bearing upon the right of appeal from the decis- 
ions of the county commissioners, see 39 Ind. 536, and cases cited. 



SCHOOLS. 147 



the examination, the applicant is found to possess a knowl- 
edge which is sufficient in the estimation of the superin- 
tendent to enable the applicant to successfully teach or- 
thography, reading, writing, arithmetic, geography, Eng- 
lish grammar, physiology, and the history of the United 
States, and to govern a school, the superintendent shall li- 
cense the applicant for the term of six months, twelve 
months, eighteen months, or two years, according to the 
ratio of correct answers and other evidences of qualifi- 
cation given upon the examination^ the standard of which 
shall be fixed by the superintendent, and applicants before 
being licensed shall produce to the superintendent the 
proper trustees' certificate, or other satisfactory evidence 
of good moral character. After an applicant has received 
two licenses in succession, for tw r o years in the same county, 
the superintendent thereof after the expiration of the last 
license issued, may renew the same without a re-examina- 
tion, at his discretion. He must also perform all the duties 
formerly required of county examiners 

School meeting may designate branches to be taught. — If the 
persons attached to and forming a school district have, at 
their school meeting, designated other or a less number of 
branches of learning than those above mentioned which 
they desire to have taught in their school, the trustee, in 
employing a teacher for such school, shall require the teacher 
to be examined as to his qualification to teach the branches 
of learning required at said school meeting. 

This must be understood to apply only to schools out- 
side of cities and towns. 

The school boards in incorporated towns and cities can 
not dispense with the teaching of any of the branches re- 
quired by the statute. 

The county superintendent has power to revoke licenses 
granted by him or his predecessors, for incompetency, im- 
morality, cruelty, or general neglect of the business of the 
school, and the revocation of the license of any teacher 



148 SCHOOLS. 



will terminate the school which such teacher may have 
been employed to teach. 

The teacher will be entitled to his compensation up to 
the time he receives notice of the revocation of his license. 

The county superintendent must hold at least one public 
examination in each month in the year, in his county, and 
in no case can he grant a license upon a private examina- 
tion, and all licenses granted by him are limited to the 
county in which they are granted. 

Superintendent must keep a record and make report. — The 
county superintendent is required to provide a blank book 
at the expense of the county, in which he shall keep min- 
utes of his proceedings, and he must deliver such record, 
and all other books, papers, and property appertaining to 
his office, to his successor, and take a receipt therefor. The 
superintendent shall, in the last week of May, annually, re- 
port to the superintendent of public instruction, the name 
of the persons to whom he has granted license, since the 
last report, for his county, distinguishing between those 
licensed for six, twelve, eighteen, and twenty-four months, 
giving the number of males and the number of females, 
and total number licensed, and the number, but not the 
names, of applicants for license who have been rejected, 
and the number of licenses revoked. 

State board of education may license teachers. — Teachers 
may apply to the state board of education for certificates ; 
and if, on a thorough and critical examination, they are found 
to possess eminent scholarship and professional ability, and 
upon furnishing the board with satisfactory evidence of 
good moral character, will be entitled to receive from such 
board a. certificate which will entitle the holder to teach in 
any of the schools of the state, during his life, without fur- 
ther examination, unless revoked by the board. The ap- 
plicant, in such case, must pay to the treasurer of the board 
a fee of five dollars. 

General duties of superintendent. — The superintendent is 



SCHOOLS. 149 



required to have the general superintendence of the schools 
of his county, to attend each township institute at least 
once a year, and to preside at the same, and conduct the 
exercises, and to visit each school of the county at least 
once a year, for the purpose of increasing their usefulness, 
and to elevate, as far as possible, the poorer schools to the 
standard of the best; to encourage teachers' institutes and 
associations, and labor in every practicable way to elevate 
the standard of teaching, and to improve the schools of his 
county. He is also required to give his opinion in all con- 
troversies of a general nature, arising under the school 
law. An appeal may be taken from his decision to the 
state superintendent, and, in such case, it is his duty to cer- 
tify a written statement of the facts. 

In conferring this authority upon the superintendent, 
the statute expressly provides that the right of any party 
to bring suit in any court of competent jurisdiction, in any 
case arising under the school law, shall not be abridged. 
The object of the statute seems to be to provide a prompt 
and inexpensive mode of settling questions under the 
school law, where parties desire to resort to it. 

The superintendent must, at all times, carry out the or- 
ders and instructions of the state board of education, and 
he is the medium between such superintendent and the 
subordinate school officers and schools. 

City schools, having a superintendent employed by the 
board of school trustees of such city, ma} 7 , at the request 
of the board, be exempt from the general supervision of 
the county superintendent. 

When superintendent must make enumeration. — When any 
trustee shall neglect to file with the county superintendent 
an enumeration of the children of the township, town, or 
city, the county superintendent must, immediately after 
the first day of May in each year, employ a competent per- 
son to take the same, and allow a reasonable compensation 
for such services, payable from the special school revenue 



150 SCHOOLS. 



of the township, and shall proceed to recover the same in 
the name of the State of Indiana, for the use of said rev- 
enue of the township, by action against the trustee in his 
individual capacity; and, in such suit, the county superin- 
tendent will be a competent witness. 

County superintendent must report to state superintendent. — 
The county superintendents are required, on or before the 
15th day of May, annually, to make out and forward to 
the state superintendent the enumeration of their respec- 
tive counties, with the same particular discrimination re- 
quired of the trustee, and shall, on or before the 15th day 
of September, annually furnish the statistical information, 
which trustees are required to report to them in such form 
as may be prescribed by the superintendent of public in- 
struction. They must also furnish with such statistical re- 
port such additional information embodied in a written re- 
port relative to the condition of the schools, school houses, 
and the general progress of education in the county, as the 
state superintendent may from time to time call for. On 
failure of any county superintendent to make his report of 
the enumeration by the 15th day of May, his county shall 
be subject to a diminution of twenty-five dollars in the 
next apportionment of school revenue by the state super- 
intendent, and on failure to make his statistical and other 
reports by the 15th day of September, his county shall be 
subject to a diminution of ten dollars in the next appor- 
tionment likewise. The sum thus withheld may be col- 
lected from the county superintendent, in a suit before a 
justice of the peace, prosecuted in the name of the state 
by any person living in the county, who has children enu- 
merated for school purposes for the current year, who is 
aggrieved by such diminution. Suit shall be commenced 
within two years from the time when the report was due, 
and not afterward. The county superintendent may dis- 
charge himself from liability to such suit, by a certificate 



SCHOOLS. 151 



of the postmaster, that the report was mailed in due time, 
together with his own affidavit of that fact. 

County superintendent must make basis of apportionment. — 
The county superintendent shall make out from the list of 
enumeration, and the reports of transfers, the basis of the 
apportionment of school revenue to the several townships, 
towns, and cities of their respective counties, and parts of 
congressional townships of adjoining counties, whose con- 
gressional township fund is managed in their counties, and 
report the same to the proper county auditor by the first 
day of June, annually, so as to enable the county auditor 
to accurately apportion the school revenue for tuition. 

He must examine the dockets of certain officers. — The 
county superintendent must, at least once in each year, 
and as much oftener as he may deem proper, fully examine 
the dockets, records, and accounts of the clerk of the 
court, county auditor, county commissioners, justices of 
the peace, prosecuting attorneys, and mayors of cities, and 
see that all fines, forfeitures, unclaimed fees, liquor licenses, 
and surplus dog tax, etc., are promptly collected, reported, 
and paid over to the proper fund. He must see that the 
full amount of interest on school funds is paid and appor- 
tioned, and when there is a deficit of interest on any school 
fund, or a loss of any school fund or revenue by the 
county, that proper warrants are issued for the reimburse- 
ment of the same. 

The official dockets, records, and books of account of the 
clerk of the courts, county auditor, county commissioners, 
justices of the peace, prosecuting attorneys, mayors of 
cities, and township and school trustees, shall be open at 
all times to the inspection of the county superintendent, 
and whenever he shall find that any of such officers have 
neglected or refused to collect and pay over any money 
due the school funds and revenues of the state, or have 
misapplied the school funds or revenues in their possession, 
he is required to institute suit in the name of the State of 



152 SCHOOLS. 



Indiana for the recovery of the same for the benefit of the 
school fund or revenues, and make report of the same to the 
board of county commissioners and to the state superin- 
tendent. 

The county commissioners must fix the number of days 
in each year which the county superintendent is required 
to labor in the performance of the duties required of him 
in visiting the schools, but the number of days can not be 
less than the whole number of schools in the county over 
which he has control. 

On the presentation of his account stating, in separate 
items, the nature and amount of service rendered on each 
day for which he claims compensation, and verified by his 
affidavit, the county board will be authorized to allow him 
four dollars per day for each day he has been employed. 
He is not allowed fees for his services in any case. 

County board of education. — The county superintendent 
and the school trustees of townships, and the chairmen of 
the school boards of cities and towns, constitute a county 
board of education in each county, and as such must meet 
at the superintendent's office on the first days of May and 
September of each year, or, if said clays be Sundays, then 
on the daj T following. A majority of the members of board 
will constitute a quorum. The superintendent must pre- 
side at the meetings, and is allowed to vote on all questions 
coming before the board. 

Duties and powers of county board. — The board shall con- 
sider the general wants and needs of the schools and school 
property of which they have charge, and all matters relat- 
ing to the purchase of school furniture, books, maps, charts, 
etc. The change of text-books, except in cities, and in the 
care and management of the township libraries, shall be 
determined by the county board; and each township must 
conform, as nearly as practicable, to its action, but no text- 
book adopted by such board, after March 2, 1877, shall be 
changed within six years from the date of such adoption ex- 



SCHOOLS. 153 

cept by unanimous vote of all the members of the board, and 
any text-book adopted before that date can not be changed 
within three years of its adoption. 1 The object of the act 
of 1877 was to prohibit the frequent changes of text-books, 
and by its terms it forbids any change where certain books 
had been adopted at the date of the passage of the act, 
for three years from the date of such adoption even by unan- 
imous vote of all the members of the board. 

Township institutes. — One Saturday in each month, and 
two in each month if the township trustee requires, during 
the time the public schools are in progress, must be devoted 
to township institutes or model schools for the benefit and 
improvement of teachers. The township trustee must de- 
signate a teacher, or other person, to preside over the in- 
stitute. In his contract with each teacher, the township 
trustee must specify that the teacher shall attend the full 
session of the institute in the township or forfeit one day's 
wages as such teacher for every day of absence from the 
institute, unless his absence is occasioned by sickness. 

Lands belonging to congressional township fund} — The 
custody and care of all lands belonging to the congres- 
sional township fund shall be with the trustee of the civil 
township in which the same shall be situated, who shall 
report annually to the auditor by the fourth Monday in 
March, the annual income derived therefrom, to the town- 
ship, and such report shall embrace a fully itemized state- 
ment of his rent account of such lands, to whom and for 
what amount the same was rented to each tenant, and 
whether the rents have been collected or not, and if any 
portion has not been collected, he should state fully the 
reasons why the same has not been collected, and any trus- 
tee who has heretofore failed and neglected to so report 
shall embrace in his first report such itemized statement 
and showing for each preceding year not so reported 

1 Acts 1877, Regular Session. 122. 2 1 R. S. 1876, 794. 



154 SCHOOLS. 



whether by himself or his predecessors, and the amount of 
school funds for any year to which such townships might 
otherwise be entitled shall be withheld and not paid over to 
such trustee if the rental value of said lands for such terms 
shall equal or exceed the township's otherwise portion of 
the school fund, and it shall be the duty of such trustee to 
pay into the county treasury all rents collected and re- 
ported by him. 

Wlien trustees may lease lands. — Township trustees have 
power, when directed so to do, by a vote, or by the written 
direction of a majority of the voters of the congressional 
township to which the same belongs, to lease such lands for 
any term not exceeding seven years, reserving rents, pay- 
able in money, property, or improvements upon the land, 
as may be directed by the majority of such voters. 

When congressional township land is divided by a civil 
township line. — When the sixteenth section, or the section 
which may be granted in lieu thereof, shall be divided by a 
county or civil township line, or where the substituted sec- 
tion lies, in any other county in the state, the voters of the 
congressional township to which the same belongs shall 
designate, by vote, or by the written direction of a major- 
ity of the trustees of one of the civil townships, including 
a part of said section, to have the care and custody of said 
section, and to carry out the directions of the voters of the 
township in relation thereto ; and the trustee so designated 
shall have the same powers and perform the same duties 
as if the entire section was situated within the limits of 
the civil township, and receive from the county treasurer 
the revenue derived from funds accrued from such sale. 

Powers of trustees in relation to school lands. — Township 
trustees have all the rights and powers of landlords in en- 
forcing the fulfillment of contracts relating to such lands 
in preventing waste and damage of, for the recovery of 
damage when the same has been done, and may bring ac- 



SCHOOLS. 155 



tions in their official name, in all such cases, whenever nec- 
essary. 1 

Sale of school lands, how determined. — When five voters 
of any congressional township shall, by petition to the trus- 
tees having charge of the school land belonging to such 
township, ask for the sale of all, or any part, of such land, 
the trustees shall give public notice, in five public places 
in such township, of the time and place, in the township, 
when and where a balloting will be had to determine 
whether the land shall be sold, which notice shall be given 
at least twenty days before the time specified therein. The 
petition must be recorded by the trustee in the book con- 
taining the record of the proceedings, and his action upon 
the petition must also be recorded. 

Yoters favoring a sale will write on their ballots " sale," 
and those opposed " no sale," and the sale will not be 
allowed unless there is a majority of votes cast in favor 
thereof, nor unless the number of votes constituting such 
majority shall exceed fifteen. The statute does not require 
that there shall be a majority exceeding fifteen in favor of 
the sale, but that more than fifteen votes shall be cast in 
favor of a sale, and that such number shall be a majority. 

The trustee must attend at the place of balloting and 
certify the number of votes given for and against the sale, 
and must file his certificate thereof in his office and enter 
the same on his record book. 

Proceedings for sale of land. — The trustee, if satisfied that 
a majority of all, and more than fifteen voters have voted 
for such sale, he shall, after having entered the same on his 
record book, proceed — 

First. To divide the lands so voted to be sold into such 
lots as will secure the best price. 

Second. To affix a minimum price to each lot, not less 

1 For the statute relating to landlord and tenant, see 2 R. S. 1876, 
336, 662. 



156 SCHOOLS. 



than one dollar and twenty-five cents per acre, below 
which it shall not be sold. 

Third. To certify such division and appraisement to the 
proper county auditor, together with a copy of all of his 
proceedings in relation to the sale of the lands. 

County commissioners to order sale. — The county auditor 
must present the certificate and return to the commis- 
sioners at their first meeting thereafter, and the board, if 
satisfied that the law has been substantially complied with, 
must order the sale. The board should be satisfied that 
the requisite number of votes has been cast in favor of 
the sale, and that the appraisement is properly made 
before the sale is ordered. A strict compliance with the 
statute, to this extent, would seem to be indispensable, 
and the trustee should, if possible, follow the strict letter 
of the law in all respects. If a sale is ordered, it must be 
conducted as follows : 

First. It shall be made by the auditor and treasurer. 

Second. Four weeks' notice of the same must be given, 
by posting notices thereof in three public places of the 
township where the land is situated, and at the court-house 
door, and by publication in a newspaper printed in the 
county, if any ; otherwise in the newspaper of any county 
in the state situated nearest thereto. The sale must be 
made by the auditor, at public auction, at the door of the 
court-house of the county in which the land is situated, 
and the treasurer must take an account thereof; and each 
of the officers, for making such sale, shall receive a fee of 
one dollar, to be paid by the purchaser. 

Terms of sale. — One-fourth of the purchase money shall 
be paid in hand, and interest for the residue for one year 
in advance, and the residue in ten years from such sale, 
with like interest annually in advance ; and deferred pay- 
ments shall be regarded as a part of the congressional town- 
ship school fund, and reported as such by the auditor to 
the superintendent of public instruction. 



SCHOOLS. 157 



If, however, as much as one-fourth part or more of the 
value of the lands sold, at the time of such sale, consists of 
the timber growing thereon, the terms of sale must be at 
least one-half of the purchase money cash in hand, and in- 
terest from the residue, for one year, in advance, and the 
residue in annual payments, in not exceeding ten years 
from such sale, with like interest annually in advance, and 
in such case, the terms of sale must be set forth in the no- 
tice of sale. 

Duty of trustee if purchaser cuts timber. — Whenever the 
purchaser of any such land shall be proceeding to cut or 
remove, or threaten to cut or remove from such lands, tim- 
ber thereon, to such an extent that the land, after the cut- 
ting or removal of such timber, will not be equal in value 
to the amount of purchase money, with interest then re- 
maining unpaid, it shall be the duty of the trustee of the 
civil township, in which such land is situated, to commence 
an action, in the name of such township, in the circuit court 
of the county, to restrain and enjoin the further cutting or 
removal of such timber. 

When deeds to be issued. — When the residue of the pur- 
chase money becomes due, the purchaser may retain the 
same as a loan for a term not exceeding three years, on 
payments annually made in advance of the interest thereon, 
at the rate then established by law for the loans of such 
funds ; but he can receive no deed until full payment is 
made. 

Purchasers have the right at any time to pay a part or the 
whole of the purchase money before it is due, and in case 
of full payment, will be entitled to deeds immediately. 

How purchase will be forfeited. — On failure to pay such 
annual interest when it becomes due, the contract will be- 
come forfeited and the land shall immediately revert to the 
township, and the auditor and treasurer will proceed forth- 
with again to sell the same in like manner and on the same 
terms ; if on such second sale the land shall bring more 



158 SCHOOLS. 



than sufficient to pay the sum owing therefor, with inter- 
est and costs and five per cent, damages, the residue shall, 
when collected, be paid over to the first purchaser or his 
legal representatives, but if at any time before the sale 
takes place the original purchaser will pay the interest due, 
and all costs, with two per cent, damages on the principal 
sum, and the interest due and owing for the land, his con- 
tract of purchase will be revived. 

When purchaser will he liable for waste. — In case of for- 
feiture, the original purchaser may be sued for waste or 
unnecessary injury done to the land, and the suit must be 
brought by the county auditor in the name of the state for 
the use of the proper congressional township. 

When the land may be sold at private sale. — When land of- 
ered at public sale remains, the auditor may sell it at private 
sale for the best price he can get, and for not less than the 
minimum price affixed thereto, and if he has not effected a 
sale for four years, the land may be reappraised and again 
offered at public sale, by order of the county commission- 
ers, as if no previous appraisement and offer of sale had 
been made, and if not sold, will then again remain subject 
to private sale by the auditor. ISTo land can be sold for less 
than one dollar and a quarter per acre. 

Auditor to certify sale. — The purchaser, whether at pub- 
lic or private sale, will, on making the first payment, be 
entitled to receive from the auditor a certified statement of 
the sale, which such auditor must, before delivering to the 
purchaser, record in the records of the board of county 
commissioners, which certificate will entitle such purchaser 
to a deed upon the full payment of the purchase money, 
and will entitle him to possession of the land, and until he 
makes default in the payment of the purchase money, will 
be entitled to all the rights of possession before existing in 
such trustee, or township, and to all rights and remedies 
for rents becoming due, or breaches of covenant occurring 
after his purchase, under any lease existing at the time of 



SCHOOLS. 159 



his purchase, and for all waste committed thereafter. The 
purchaser may assign his certificate, in writing, but to 
make such assignment valid, it must be acknowledged be- 
fore some officer authorized to take acknowledgments of 
deeds, or before the auditor, and the auditor must in all 
coses record the assignment. The assignee of the certifi- 
cate will be entitled to all the rights under it that the orig- 
inal purchaser has. 

Liability of purchaser for failure to make first payment. — 
A purchaser failing to make the first payment, shall pay 
ten per centum on the sum bid, to be recovered by action 
before any court having jurisdiction, to be prosecuted by 
the county auditor in the name of the state for the use 
of the proper township, and the auditor and treasurer will 
be competent witnesses. 

All payments to be made to county treasurer. — The purchase 
money and interest, and all costs and damages, shall be 
paid to the treasurer of the proper county, and his receipt 
therefor filed, by the person paying, with the county audi- 
tor, who shall issue his quietus therefor. And when the 
final payment is made, the amount named in such receipt 
must be indorsed on the certificate of purchase by the 
county auditor. 

When deed shall be made. — On full payment of the pur- 
chase money, a deed must be issued by the auditor, and 
must be executed and acknowledged by him, at the cost of 
the purchaser ; and, before delivery, must be recorded on 
the record book of the county commissioners, and when so 
executed shall vest the absolute title to the land in the pur- 
chaser. 

Voters of congressional township may petition for sale of 
land. — The voters of any congressional township may, in 
the absence of a vote to sell land, and in lieu thereof, peti- 
tion the trustee of the township for such sale, and such pe- 
tition, if signed by a majority of all the voters of the town- 
ship, shall be filed with the county auditor, and the same 



160 SCHOOLS. 



proceeding shall be had as upon a vote of the inhabitants 
of the township for such sale. Such petition and certifi- 
cate shall be recorded in the record book of the trustee of 
the township and of the county auditor, of the investment 
of funds held for the benefit of common schools and con- 
gressional townships. 

Loss of certificate of purchase. — In case of the loss of a 
certificate, before a deed is made, the holder may make 
proof of such loss by his affidavit, or other competent- tes- 
timony, which proof must be filed with the auditor, and 
may, after giving three months' notice of his intention to 
do so, given in a newspaper printed nearest where the land 
lies, apply to such auditor for a new certificate, which will 
be thereupon issued to the person entitled to the same. 

When land is sold without title. — When any officer, au- 
thorized to sell school lands, has sold lands without title 
thereto, other lands, equal in value, may be conveyed by 
such officer or his successor, as may be agreed upon ; or, 
failing to agree, the purchase money, with interest at six 
per cent., must be refunded to the purchaser. 

Before the purchase money is refunded, the prosecuting 
attorney must investigate the case and certify to the cor- 
rectness of the claim. 

When a new school house is built, the trustees may sell 
the old one, and the ground whereon it stands, if the town- 
ship, town, or city has an unconditional title to the prop- 
erty, if it is thought advisable to do so. The sale may be 
for cash in hand, or on time, and for the highest price that 
can be obtained, and the purchase money will be a part of 
the special school revenue. 

The language of the statute is not very clear as to whom 
the purchase money must be paid, and by whom the con- 
veyance shall be executed upon such payment being made, 
but the meaning seems to be that, in case of the sale of a 
school house and ground belonging to a township, the trus- 
tee will receive the purchase money and execute the deed 



SCHOOLS. 161 



to the purchaser, and, in case the property sold belongs to 
an incoi'porated town or city, the purchase money should 
be paid to the treasurer of the school board, who will be 
authorized to execute the conveyance to the purchaser. 

Title of lands for school purposes to be in name of school 
corporation. 1 — The title to all lands acquired for school pur- 
poses, must be conveyed to the township, incorporated 
town or city, for which it is acquired, in the corporate 
name of the township, town, or city, which is used for 
school purposes, for the use of common schools therein. 
In all cases in which the title to any such land is vested in 
any other person or corporation, it shall be the duty of the 
trustees for school purposes, to procure the title to be 
vested in the township, town, or city. 

When and how public school house may be used for private 
school. — When a school house is unoccupied by a common 
school, and the people who form the school at such house, 
desire that a private school be taught therein, and a ma- 
jority of them make application to the trustee having 
charge of such house, for the use of it for a private school, 
it is the duty of the trustee to permit the school house to 
be used for such private school, by such teacher as may be 
mentioned in the application, but not for a longer time 
than until the house may be wanted for a public school; 
and such permission and use will be upon the condition 
that the teacher employed in the school shall report, in 
writing, to the trustee : First, The number of teachers em- 
ployed, distinguishing between male and female. Second, 
The number of pupils admitted into the school within the 
term, and the average daily attendance. Third, The cost 
of tuition, per pupil, per month, in said school. 

When school house may be used for other purposes than 
schools. — If a majority of the legal voters of any school 
district desire to use their school house for other purposes 
than a school, when it is unoccupied for such purpose, the 

x 27Ind. 465. 



162 SCHOOLS. 



trustee must, on application made to him by such voters, 
authorize the director to permit such use, giving equal 
rights to all religious denominations and political parties, 
without regard to the numerical strength of any religious 
denomination or political party in such school district. 1 

This, however, only applies to school houses outside of 
incorporated towns and cities. 

When trustees of adjacent townships or counties may build 
school houses. — The trustees of two or more adjacent coun- 
ties or townships may establish a new school district, 
and build a school house therein at the joint expense of 
their several townships, whenever, in their judgment, it 
shall appear necessary for the better accommodation of the 
people of their respective townships. Such necessity must 
be set forth in a petition by the persons making the re- 
quests, to be presented to each of the trustees ; and said 
trustees must, at a time agreed upon by them, not less than 
ten nor more than thirty days from the time of receiving 
the petition, hold a joint meeting for the purpose of de- 
claring whether such petition will be granted, and take 
such further action as the case may require. 

How expense must be borne. — Each township must bear 
such part of the expense of establishing such joint dis- 
trict school, as the number of children of school age 
residing in each township, and attaching themselves to 
said new district at the time of its formation, bears to the 
whole number of children of school age who are attached 
to said district at its formation, and each township must 
assume its share of the debt so incurred. But when the 
school is established it must be supported by the township 
in which it is established, in the manner already prescribed 
by law. 

When township trustees may issue bonds to build school* 
houses? — An act passed by the legislature at its last session 
provides as follows : 

1 48 Ind. 148. 2 Acts 1877, Regular Session, 126. 



SCHOOLS. 163 



Section I. Whenever any person shall give and be- 
queath unto trustees any sum of money, exceeding five 
thousand dollars, for the purpose of erecting a public 
school building or seminary in any unincorporated town in 
this state, and upon the express or implied condition, con- 
tained in said bequest, that an amount equal thereto shall 
be raised by the citizens of said town or township for a 
like purpose, the township trustees of said township, in 
which said town is situated, shall, upon the petition of a 
majority of the legal voters of said township, be authorized 
to prepare, issue, and sell the bonds of said township to 
secure a loan not exceeding fifteen thousand dollars, in 
anticipation of the revenue for special school purpose, for 
the purpose of complying with the condition annexed to 
such gift or devise, said bonds to bear a rate of interest 
not exceeding seven per cent, per annum, payable at 
such time, within seven years from date, as such trustee 
may determine. Provided, That until all the bonds of any 
one issue shall have been redeemed, such township trustee 
shall not be authorized to make another issue, nor shall 
any such bonds be sold at a less rate than ninety-five cents 
on the dollar. 

Sec II. The whole number of votes cast for can- 
didates for congress, at the last preceding congressional 
election in the township, shall be deemed to be the whole 
number of legal voters of such township, a majority of 
whose names shall be signed to the petition presented to 
such township trustee, to which petition shall be attached 
the affidavit or affidavits, as such trustee may deem neces- 
sary, of a competent and credible person or persons that the 
signatures of all the names to said petition are genuine, and 
that the persons whose names are thereto signed are, as he 
believes, legal voters of such township. 

Sec. III. The township trustee shall record such peti- 
tion, together with the names attached, in the record book 
of his township, and carefully file away and preserve said 



164 SCHOOLS. 



petition, and shall enter in such record a statement of the 
time when such petition was filed ; and if said trustee shall 
then be satisfied that said petition contains the names of a 
majority of the legal voters of said township, he shall then 
prepare, issue, and sell bonds to the amount petitioned for 
in such petition, as provided in section one of this act, and 
shall accurately keep a record of all proceedings in and 
about the issue and sale of said bonds, to whom and for 
what amount sold, the rate of interest they bear, and the 
time when they become due. 

School commissioners in cities. 1 — In cities containing a 
population of thirty thousand or more inhabitants accord- 
ing to the United States census of 1870, the common 
schools are under the care and management of a board of 
school commissioners to be composed of as many members 
as there are wards in such city. 

The common council of any city without regard to the 
population, may, by a majority vote of all the members 
thereof, order the election of aboard of school commission- 
ers, which board, when elected and organized, will super- 
sede the board of school trustees, and perform all the du- 
ties required by statute of the board of school trustees. 

By an amendment to the original act adopted in 1877, 
such boards are authorized, when the common school fund 
is insufficient to continue the schools through the regular 
school year, to make temporary loans to continue the 
schools until the receipt of the school revenue of the cur- 
rent year, but no more than is necessary for the purpose, 
nor more than the amount of such revenue for the 
current year, shall be borrowed at any one time, and no 
further loan can be made until such temporary loan is 
paid. 2 | 

Trustees and common council may levy tax. — The trustees! 
of the civil townships, the trustees of incorporated towns, 
and the common councils of cities, have power to levy an- 

1 1 R. S. 1876, 817. 2 Acts 1877, Regular Session, 123. 



SCHOOLS. 165 



nnally a tax not exceeding twenty-five cents on each one 
hundred dollars of taxable property, and twenty-five cents 
on each taxable poll, to be assessed and collected as the 
taxes for state and county revenue are assessed and col- 
lected, and the funds arising from such taxes, under the 
charge and control of the same officers, secured by the same 
guarantees, subject to the same rules and regulations, and 
applied and expended in the same manner as funds arising 
from taxation for common school purposes, except that the 
funds shall be applied and expended in the same civil 
township, incorporated town or city in which they shall 
have been assessed and collected. 1 

The supreme court has held that school trustees, in an- 
ticipation of the collection of funds arising from this tax, 
may employ teachers within the year for which the levy is 
made, to be paid out of such funds when collected. 2 

Township libraries. — Township libraries shall be in charge 
of the township trustee, and the books can not be sold. 

Trustees will be accountable for the preservation of the 
libraries, may prescribe the time of taking and returning 
books, assess and recover damage done to them by any 
persons, and may adopt proper regulations for their pre- 
servation and usefulness. He must provide book-cases and 
blank books, in which to keep an account of books taken 
out and returned, and report the number each year to the 
county superintendent, and, at the commencement of each 
school term, must post up, at each school house, a notice 
stating where the library is kept, and inviting the free use 
thereof by persons in their townships. 3 Every family is 
entitled to two volumes at a time, whether any member 
thereof attend school or not. The library must be kept 
at some central place, open throughout the year, Sundays 
and holidays excepted. 

Colored children} — School trustees of townships, cities, 

X 1R. S. 1876,783. »30 Ind. 178. 

3 1 R. S. 1876, 809. 4 Acts 1877, Regular Session, 124. 



166 SCHOOLS. 



and towns are required to organize colored children into 
separate schools, having all the rights, privileges, and ad- 
vantages of the white schools, and if such schools are not 
provided, they must be permitted to attend the public 
schools with white children. 

When a child attending a colored school shall, on exam- 
ination and certificate of his teacher, show to the trustee 
that he has made sufficient advancement to be placed in a 
higher grade than is afforded by the colored school, such 
pupil must be permitted to enter the school provided for 
white children of a like grade, and no distinction must be 
made on account of race or color. 

What shall be taught in common schools. — The common 
schools must be taught in the English language, and trus- 
tees must require orthography, reading, writing, arithme- 
tic, English grammar, physiology, and the history of the 
United States to be taught in all the schools, unless the in- 
habitants of any school district have, in the mode pre- 
scribed by law, designated a less number of branches to be 
taught in the school of such district. 

Trustees may also, and it is their duty to require other 
branches of learning and other languages to be taught 
when the advancement of pupils requires it. Whenever, in 
any district, before a teacher is employed, the parents or 
guardians of twenty-five children who are to attend the 
school demand it, the German language must be taught in 
such school without charge. Trustees must also require 
teachers to instruct pupils in good behavior and correct de- 
portment. 

Bible in the public schools. — By express provision of the 
statute, the exclusion of the bible from the public schools 
in this state is forbidden. The statute does not, however, 
in terms, require that it shall be introduced, and, in the ab- 
sence of any demand therefor, by any person interested, 
the reading of the Bible may be dispensed with. The de- 
partment of public instruction construes the law to be that 



SCHOOLS. 167 



it is for the teachers to determine, in each particular case, 
whether the bible shall be read. Yery much should be left 
to the judgment and conscience of teachers in the matter 
of bible reading, but the language of the statute is broad 
enough to make it obligatory upon them, when required 
by the trustees, or persons sending children to the school, 
to require of any teacher the use of the bible in their 
schools. 

The constitution of the state makes it the duty of the 
general assembly to provide for the moral, as well as the 
intellectual improvement of the people through the agency 
of common schools, but not for their religious training. 1 

Teachers must have a good moral character, but are not 
required to have any religious belief. The statute does not 
require, even by implication, that there shall be any devo- 
tional exercises or religious instruction in the schools, nor 
does it prohibit it. The legislature, in the revision of the 
statutes of 1852, made provision for the reading of the 
scriptures, in case it is desired, in any of the common 
schools, and it has been so far acquiesced in b}^ the people, 
that no question in regard to it has, as yet, come before the 
supreme court. 

Government of schools. — In addition to the suspension or 
dismissal of pupils for misconduct, teachers have the legal 
right to inflict corporal punishment, in moderation, al- 
though the tendency of public sentiment seems to be 
against it. 2 

The following extract from an opinion pronounced by 
one of the circuit judges of this state, very clearly states 
the law upon this subject : 

"A school teacher, while in the school room, is respons- 
ible for maintaining good order, and he must be the judge, 
to some extent, of the degree and nature of the punish- 
ment required when his authority is set at defiance, and 
although he will be held amenable to the law for any abuse 

4R.S. 1876, 38. 2 4 Ind. 290, 632. 



168 SCHOOLS. 



of this discretion, still he will not be held liable on the 
ground of excessive punishment, unless the punishment is 
clearly excessive, and would be held so in the judgment of 
reasonable men. 

"A teacher, in the exercise of the power of corporal pun- 
ishment, must not make such power a pretext for cruelty 
and oppression ; but the cause must be sufficient, the in- 
strument suitable, and the manner and extent of the cor- 
rection, the part of the person to which it is applied, and 
the temper in which it is inflicted, should be distinguished 
with the kindness, prudence, and propriety which be- 
come the station. 

"A school teacher is liable criminally if, in inflictingpun- 
ishment upon his pupil, he goes beyond the limit of reason- 
able castigation, and, either in the mode or degree of cor- 
rection, is guilty of any unreasonable or disproportionate 
violence or force, and whether the punishment was exces- 
sive under the circumstances, is a question for the jury." 

Penalty for insulting teacher in presence of pupils. — In or- 
der to protect teachers from annoyance and insult in the 
presence of pupils, the statute provides, that if any parent, 
guardian, or other person, from any cause, fancied or real, 
visit a school with the avowed intention of upbraiding or 
insulting the teacher in the presence of the school, and 
shall eo upbraid or insult a teacher, such person, for such 
conduct, shall be liable to a fine of not more than twenty- 
five dollars, which, when collected, shall go into the gen- 
eral tuition revenue. 1 

In a prosecution for this offense, it would be necessary 
to a conviction, that the proof should show, not only that 
the party charged insulted and upbraided the teacher in 
the presence of the school, but that he went to the school 
room for the avowed purpose of doing so. 

The statute does not seem to apply to a case where a 
person may happen to go to a school for a lawful and proper 



1 R. S. 1876, 814. 



SCHOOLS. 169 



purpose, and, while there, from any cause, should insult 
the teacher, his visit to the school being in no way caused 
by ill feeling toward the teacher. 

Length of school terms. — A school terra of three months 
is sixty days ; a school month is twenty days, and a school 
week is five days. 

The books, papers, and accounts of any trustee, relative 
to schools, are open to the inspection of the county super- 
intendent, auditor, and commissioners, and, for the pur- 
pose of such inspection, they may summon any trustee 
before them, and, on three days' notice, require such books 
and papers to be produced. If the books and accounts 
have been imperfectly kept, the county board may correct 
them, and if any fraud appear, the guilty party shall be 
removed from office. 

Suits by and against school corporations. — Process in suits 
against a school township, town, or city, must be by sum 
mons, served by leaving a copy thereof with the trustee of a 
township, or with the president of the board of trustees of 
a city or town, ten days before the return day thereof. In 
case of an appeal, a similar notice must be given. The 
statute does not seem to provide for service of a summons 
by reading or leaving a copy thereof at the usual or last 
place of residence of a trustee, and such service would not 
be sufficient. 

Suits brought in behalf of any school corporation must 
be brought in the name of the state, for the use of the 
township, town, or city, as the case may be. 

Appeals from township trustee and superintendent. — Ap- 
peals are allowed from all decisions of trustees relative 
to school matters, to the county superintendent, who will 
receive and determine such appeals according to the rules 
governing appeals from justices of the peace to the circuit 
court, so far as applicable, and their decisions of all local 
questions relating to the legality of school meetings, estab- 
lishment of schools, and the location, building, repair or 



170 SCHOOLS. 



removal of school houses, or transfers of persons for school 
purposes, and designation and dismissal of teachers, shall 
be final. In all other cases appeals are allowed from the 
decisions of the county superintendent to the superintend- 
ent of public instruction, and the rules that govern appeals 
from justices of the peace to the circuit court as to the 
time of appeal, giving bond, etc., shall govern. 

Any person who shall sue for or on account of any de- 
cision, act, or refusal or neglect of duties of a township 
trustee, for which he might have had an appeal, can not 
recover costs even if he should be successful in his action. 

The object of this requirement of the statute is to dis- 
courage litigation in the courts in reference to questions 
arising under the school law, which is always attended 
with considerable expense, and often with great delay. 

Wlien school officers may administer oaths. — All school of- 
ficers have authority to administer oaths in all matters re- 
lative to school business arising in the discharge of their 
official duties, pertaining to their respective offices. 

Doors of school houses. — The statute requires that the 
doors of all school rooms in which scholars assemble, unless 
such rooms be upon the ground floor, shall open outwardly, 
and all school trustees who neglect to have such doors so 
hung that they will open as required by the statute will be 
liable to a fine of not exceeding one thousand dollars, to 
which may be added imprisonment in the county jail not 
exceeding six months. 1 

The object of this statute is to afford pupils an easy means 
of escape from the school room in case the building should 
take fire. 



1 Acts 1877, Special Session, 59. 



SUPERVISORS. 171 



CHAPTER XIV. 

SUPERVISORS. 

Election of. — By an act of the legislature, approved 
March 5, 1877, 1 it is provided, that there shall be an elec- 
tion for supervisors of highways, by the voters of the sev- 
eral highway districts, at the October election, 1878, and 
biennially thereafter at the township elections, and that all 
supervisors now in office shall hold until that time, so that 
supervisors will not be chosen at the township elections 
until 1880,. and they will hold their office for two years. 

Must be a freehold resident of district. — Each voter shall 
be entitled to vote for a supervisor in his road district, and 
no person is eligible to the office unless he be a freehold 
resident of such district. No ticket must contain the name 
of more than one person voted for as supervisor. 

Vacancy, how filled. — In case of a failure on the part 
of the voters to elect a supervisor, or if, from any cause, a 
vacancy in the office occur, the township trustee, as soon 
as he is informed of the fact, must fill the vacancy by ap- 
pointment. The trustee must issue a certificate of appoint- 
ment and deliver it to a constable of the township, within 
three days after making the appointment, who must de- 
liver it to the person appointed, and make return thereof 
to the trustee within seven days from the time the certifi- 
cate of appointment came to his hands. 

The act above referred to also provides that the person 
so appointed will hold until the next annual election ; but 
as the statute does not provide for annual elections, the bi- 
ennial township election is probably intended, and the 
statute should be so construed. 2 

1 Acts 1877, Regular Session, 128. 2 Ibid, 58. 



172 SUPERVISORS. 

Penalty for failing to serve as supervisor. — Any person 
who is eligible to the office of supervisor, and who is lia- 
ble to perform highway labor, and who has not served in 
that capacity within six years, who shall fail to accept the 
office of supervisor for his district and qualify and serve as 
such, when duly elected or appointed, must pay into the 
township treasury, within twenty days thereafter, the sum 
of six dollars, or he will be liable to an action therefor, to 
be instituted before any justice of the peace of the town- 
ship by the township trustee, in the name of the township, 
or if the office of trustee be vacant at the time, then by 
the county auditor. When collected, the money must be 
paid to the supervisor of the proper road district, or if the 
office be vacant, then to the proper township trustee for the 
benefit of such road district. 

Must take oath. — Before entering upon the performance 
of the duties of the office, he must take an oath or affirma- 
tion for the faithful performance thereof before some per- 
son authorized to administer oaths. 

Duties of supervisors. — First. He must carry into effect 
all the orders of the trustee of the township in which his 
road district is situated, touching the highways and bridges 
therein, and shall keep them in good repair. 

Second. He must call out all able-bodied male persons 
in his district, except insane persons, idiots, deaf and dumb 
and blind persons, who are residents of the state, and 
over twenty-one and under fifty years of age, and not ex- 
empt from such labor, during not less than two nor more 
than four days in the months of April. May, or June of 
each year, and must require each person to work eight 
hours per day upon the highways in his district. 

Third. He must superintend the work on the highways, 
and see that it is faithfully performed, and must sue for and 
collect all fines and commutation money due his district. 

Supervisors also have the right to require persons per- 
orming labor on the highways to furnish any tools which 



SUPERVISORS. 173 



may be necessary in performing labor on the highways, 
provided the demand therefor be reasonable, and may 
also require any such person who may be the owner of a 
horse or ox team to furnish the same, and also a driver, 
and a plow, cart, or wagon, to be used in such labor, but 
for every day's labor the supervisor must receipt to the 
owner for three days' labor. 

Notice to persons to work on highways. — The supervisor 
must give at least three days' verbal or written notice to 
persons liable to perform labor on the highways, prior to 
the lime designated for such work. 

If the notice is verbal, it should be given directly to the 
person required to work ; if written, it should be person- 
ally delivered to him, or left at his residence. It will be 
sufficient in point of form if it states the time and place 
where such labor is to be done, and if the person is required 
to produce any tools or team it should be specified in the 
notice. 

Substitutes may be furnished. — Persons liable to perform 
labor, when notified, may appear in person or by an able- 
bodied substitute, and the person or the substitute must 
actually labor eight hours each day, under a penalty of 
twenty-five cents for every hour such person or substitute 
may be in default. 

Forfeiture for failure to labor faithfully. — If such person 
or substitute fail to labor faithfully, or remain idle, or hin- 
der others from working, he shall forfeit for each offense 
the sum of one dollar, to be collected as other fines and 
forfeitures under the supervisors' act, and he must be dis- 
charged without credit for the work he may have done. 

Suit to be brought against persons failing to labor. — The 
supervisor must, within ten days after warning the persons 
liable to work in his district, bring suit, in the name of the 
township in which such district is situated, against such 
persons as fail to work or pay the commutation money 
therefor, before any justice of the peace of the township, 



174 SUPERVISORS. 



and in bringing such suit it shall only be necessary for an 
account stating the number of days which each person failed 
to labor, and charging one dollar per day each therefor, to 
be filed with the justice as a cause of action, and in case of 
recovery, the judgment must be in the name of the town- 
ship, for one dollar for each day the defendant so failed, 
and costs of suit, and no stay of execution or benefit of 
valuation or appraisement or exemption laws will be al- 
lowed, all of which should be specified in the judgment by 
the justice. 

Penalty for failure to bring suit.— If the supervisor fail 
to bring the action within the time required, he will for- 
feit and become liable to pay the sum of ten dollars, and 
suit may be brought against him in the name of the town- 
ship, but the supervisor is not required to bring suit 
against persons from whom there is no probability of col- 
lecting, or who at the time they were required to work 
were sick, or otherwise disabled from labor, but if such 
sick or disabled person be liable to pay commutation, he 
shall so pay, or the supervisor must sue therefor within 
sixty days from the time of giving the notice. 

Persons liable to work may pay commutation. — Any person 
liable to work on the highways may be exempt therefrom 
by paying to the supervisor of his district, at any time be- 
fore suit is brought, the sum of one dollar for each day he 
is liable to work, and the supervisor must execute a receipt 
to such person, and may employ some person to work out 
such money on the highways of his district at the rate of 
one dollar per day, or, failing to do so, must pay the money 
into the township treasury, for the benefit of his road dis- 
trict. 

Who may be exempt. — Any person liable to work on the 
highways may be exempt therefrom by making applica- 
tion to the township trustee, and showing to the satisfac- 
tion of the trustee that he is unable to perform ordinary 
labor, from bodily infirmities, and that he is too poor to 



SUPERVISORS. 175 



pay the commutation therefor; or, that he belongs to 
a legally organized fire company ; and, in such cases, it 
is the duty of the trustee to execute to such persons a cer- 
tificate thereof, which, on presentation to the supervisor, 
shall entitle them to exemption. 1 

Who are deemed able-bodied. — Any person who is able to 
perform an ordinary day's labor is declared by statute to 
be liable to perform labor on the highways, although such 
person may be, in some respects, deformed. 

How money recovered shall be expended. — All money col- 
lected by suit from persons failing to work on highways, 
and from supervisors for neglect to bring suits therefor, 
shall be received and expended by the proper supervisor 
in the improvement of the highways in the district in 
which such forfeitures occurred. And the supervisor, 
within ten days after the receipt of any money which he 
is not required to pay to the township trustee, must pro- 
ceed to employ laborers to repair the highways in his dis- 
trict, and he must pay no more wages to such laborers 
than is customary in his district for similar purposes; but 
supervisors shall in no case neglect to make such repairs. 
The meaning of the statute seems to be that if labor can 
not be procured by the supervisor for the customary wages 
paid for labor in his district, he will be authorized to pay 
enough more to procure the labor; and if such labor and 
the road tax, where such tax has been assessed, are insuffi- 
cient to complete such repairing, he must call out the per- 
sons in his district liable to perform such work, for that 
purpose, and if such persons refuse to work, they will be 
liable to pay the commutation money therefor, and suits 
maybe brought and recoveries had, as in other cases of 
failure to perform highway labor. 

Certificate to be given to persons performing excess of work. — 
When extra labor is required to be performed on the high- 
ways, but not sufficient to require all the hands in the dis- 

1 23 Ind. 479. 



176 SUPERVISORS. 

triet, or an equal amount of labor from each, the supervi- 
sor may assess the same upon such number of persons as 
he may deem sufficient, and for the excess of work per- 
formed by any one over the average amount performed by 
all, he must give to the person performing such labor a cer- 
tificate of the amount thereof, which will be a credit to the 
holder thereof, on account of any subsequent labor to be 
done on the highways of his district. 

When supervisor may enter on adjoining lands. — When 
necessary for the construction or repair of any ditches, 
drains, dams, or highways, the supervisor, or any person by 
his order, is authorized by statute to enter upon any lands 
adjoining or near to the locality where such construction 
or repairs are to be done, and dig and remove any earth, 
gravel, sand, or stone, and to cut and remove any wood or 
trees that may be necessary for the construction, preserva- 
tion or repair of such highways. 1 Before entering upon 
lands to take materials therefrom, it is the duty of the 
supervisor to make demand of the owner for the material 
needed, and if such owner assent, he may point out to the 
suj3ervisor the material and the place from which it maybe 
taken, and if it be fit for the purpose intended, and accessible, 
such material must be taken, otherwise the supervisor may 
select material from another place. If such owner refuse his 
consent, the supervisor may then notify him of his intention 
to enter upon his lands, and for what purpose and for what 
length of time he will occupy the same, and shall point out 
the land to be occupied or the material to be taken. Imme- 
diately after the removal of such material the supervisor 
must, with the assistance of two disinterested persons, 
proceed to the locality and assess the damages in such sum 
as shall seem to them right and proper, in favor of the 
owner, and he must report the amount of damages assessed 
to the township trustee within ten days after such assess- 
ment, first giving notice thereof to the party damaged. 

Ullnd. 420. 



SUPERVISORS. 177 



The supervisor must also notify the owner of the time and 
place of the meeting of the appraisers for the assessment 
of damages; and he must have the opportunity to select 
one appraiser, and he also has the right to be present at 
the assessment, and at tht> time of such assessment to offer 
evidence as to the amount of damages. 

The township trustee must pay the damages assessed, 
first giving notice to the party damaged, unless he regards 
the amount as unreasonably large, in which case he may 
reduce it. 1 

When material should be taken from roadway. — 18o per- 
son's land, however, may be entered and material taken 
therefrom, if it can be procured from the roadway within 
a convenient distance in the district, nor when drainage 
can be made on the roadway at a cost not exceeding the 
cost and damages of entering on private lands. 

The evident meaning of the statute is that supervisors 
should not enter upon private lands to obtain material or 
make drains, except in cases where it is clearly nec- 
essary. 

Guide boards must be maintained.— It is the duty of every 
supervisor to see that guide boards are maintained at the 
forks and crossings of every road in his district, with plain 
inscriptions, and which may be easily read, directing the 
way and stating the distance to the most noted place on 
each road, respectively, for which he is entitled to be paid 
by the township trustee out of the township treasury. 

When trees within the limits of new highway may be removed 
by owner. — All timber standing or lying on the land over 
which any highway is laid out which it will be necessary 
to remove in opening such highway, shall belong to the 
owner of the land, if he will take it away before the super- 
visor is required to open the highway, unless the same is 
necessary to be used in the construction of the highway. 
The owner of the land being compensated by the damage 

*9 Ind. 558; 11 Ind. 420; 4 Ind. 209; 26 Ind. 53. 



178 SUPERVISORS. 



assessed in his favor on account of the opening of the high- 
way, the supervisor will have the right to take any such 
timber or other material that may be needed for the con- 
struction of the highway, or any bridge on such land. 

When owners of farms must remove obstructions. — When 
any highway running through or bordering on any farm or 
plantation shall become obstructed, the owner or occupant 
of such farm or plantation must remove the obstruction as 
soon as it shall come to his knowledge, and the supervisor 
of his district must allow him a reasonable credit therefor 
upon his liability to work on the highways, unless the ob- 
struction has been caused by his act, in which case he will 
be required to remove the same without credit. 

Road tax may be worked out. — The supervisor must obtain 
the list of the road tax, which may be assessed by the 
township trustee, with the concurrence of the board of 
county commissioners, for road purposes, which list must 
set forth the amount of tax assessed against each individ- 
ual. The tax on real estate must be worked out in the 
district where the land lies, and the tax assessed on per- 
sonal property in the district where the owner resides, at the 
rate of one dollar per day, and the certificate of the super- 
visor of the amount worked will be taken by the county 
treasurer in payment of such tax. 

How tax must be expended. — The township trustee must 
order the expenditure of such tax, when collected, in the 
improvement of the highways of his township, under such 
regulations as he shall deem most expedient for the public 
interest, and for that purpose is authorized to pay such sum 
on the order of the supervisors of the township as their re- 
spective districts may require. 

The orders of the supervisors drawn upon the trustee, 
must distinctly stite the service performed by the persons 
to whom they are given. 

Trustees may let contract for repairs. — Township trustees 
may let the contract of keeping highways and bridges in 



SUPERVISORS. 179 



repair in their respective townships to the lowest respon- 
sible bidder, and for that purpose they may cause notices to 
be posted in three of the most public places in the town- 
ship, that proposals therefor will be received under such 
regulations as they may prescribe at the time and place to 
be by them designated. 

The trustee must, either through the supervisors or by 
contracts made with responsible persons, see that the tax 
collected is expended in making necessary repairs and im- 
provements of the roads and bridges in the several road 
.districts of his township. 

When commissioners shall perform duty of trustee. — In any 
township in this state which is not organized under the 
provisions of the statute providing for the election of a 
trustee of such township, all duties required to be performed, 
and all rights accruing to the township trustee, shall be 
performed by, and accrue to, the board of commissioners 
of the county. 

Penalty for injuring clam, drain, etc. — Any person who 
shall willfully injure any dam, drain, embankment, ditch, 
or other construction, made for the protection of any high- 
way or bridge, or who shall willfully destroy any guide- 
post, or deface any device or inscription, or who shall un- 
necessarily, and to the hindrance of passengers, obstruct 
any highway or bridge, or who shall, when driving any 
vehicle, fail to pass to the right when meeting another ve- 
hicle, so as to allow it to pass without injury, will, for every 
such offense, forfeit the sum of five dollars, to be recovered 
by suit before a justice of the peace of the county, in the 
name of the trustee of the township, by the supervisor of the 
district; and, in case of such obstruction, for every day the 
same is continued, the sum of five dollars shall be recovered ; 
and, in all such cases, the supervisor, within three days after 
receiving information of any such forfeiture, shall com- 
mence such suit, and the sum recovered thereon shall be 
paid to the trustee of the township for the benefit of the 



180 SUPERVISORS. 



Justice of the Peace. 



highways of the district in which the forfeiture oc- 
curred. 1 

Form op Complaint for Penalty for Obstructing 
Highways. 

Samuel McElfresh, Trustee 
of Lawrenceburgh Township, 

of Dearborn county, by Job 

, T . 11 ~ . - t» j I -Before Sebastian Green, 

Miller, Supervisor of Koad f Tu<m»» *f +~h<> zw 

District Number 5, 
v. 
Bailey H. Lowe. 
Samuel McElfresh, Trustee of Lawrenceburgh township, 
of Dearborn county, by Job Miller, Supervisor of Highways 
in Road District ISTumber 5. in said township, complains of 
Bailey H. Lowe, and says that on the 12th day of Septem- 
ber, 1878, the defendant unnecessarily and to the hindrance 
of passengers obstructed a certain public highway in said 
township in the county of Dearborn, leading from the 
city of Lawrenceburgh to Hardinsburgh, and known as 
the " Canal road," by building a fence upon and across 
said road at a point within one-fourth of a mile south 
of the said town of Hardinsburgh, and within the limits 
of said road district, and that the defendant continued 
said obstruction from said 12th day of September until 
the 15th day of September, 1878; wherefore the plaintiff 
demands judgment for fifteen dollars, for the benefit of 
the highways in said road district. 

Samuel McElfresh, 

Trustee, 
By Job Miller, 

Supervisor. 



All suits commenced by one supervisor maybe continued 
by his successor, and no costs can be taxed against him, 

x 27 Ind. 56-86; 53 Ind. 18; 5 Ind. 459; 15 Ind. 226. 



SUPERVISORS. 181 



but judgment for costs should be rendered against the 
township, if the suit should be determined for the de- 
fendant. 

Penalty for supervisor failing in duty. — If any supervisor 
fail to use due diligence ^n keeping the highways in his 
district in good repair, under the regulations prescribed by 
law, or fail to call out the persons liable to work on the 
highways of his district, the number of days required by 
law, unless the tax assessed for the repair of such highways 
be sufficient therefor, or who shall fail to bring suit for any 
of the forfeitures provided for in the supervisors' act, shall 
forfeit the sum of ten dollars, to be recovered before any 
justice of the county, in the name of the township, by the 
trustee thereof; and such trustee must bring suit within 
three days after receiving any information of such for- 
feiture. 

Successor to collect delinquencies. — The successor in office 
of any supervisor must collect all delinquencies accruing 
during the term of his predecessors, and all judgments 
rendered in their favor, and remaining uncollected, and on 
going out of office must hand over to his successor all 
books, papers, money, and tools in his possession, pertain- 
ing to his office, when called for. 

How money in county treasury, belonging to road district, 
must be applied. — All money in the treasury of any county, 
belonging to a road district thereof, must be paid over to 
the trustee of the township in which such district is sit- 
uated, on the warrant of the proper auditor, and must be 
applied for the benefit of such district, and such money 
must be paid out on the order of the supervisor or super- 
visors of such township. 

Money for improvement of roads, when and how expended. — 
All money intended for the improvement of roads must be 
expended thereon, on or before the 15th day of September 
in each year. 1 If, however, any of such tax is in the 

^Ind. 515. 



182 SUPERVISORS. 



county treasury which has been collected from the tax- 
payers of the property within any incorporated town, or 
belonging to such town, such tax shall, on the warrant of 
the auditor, be paid to the treasurer of the town, and it 
must be expended for the benefit of the streets and alleys 
in such town as the trustees thereof may direct. 

Supervisor must make report. — Each supervisor must, on 
the last Saturday in September in each year, make a 
full and succinct report under oath of his proceedings, 
showing the names of the persons liable to, or who have 
performed labor on the roads in his district, the amount of 
commutation received, and from whom received, and also 
the whole amount of money received from all other sources 
whatever, and how it has been expended, and must, on the 
same day, file the report with the township trustee and pay 
to him any balance that may be in his hands. 

Duty of trustee when report is not made. — The township 
trustee must audit such report, and if any supervisor fail to 
make report the trustee must bring suit against him before 
a justice of the peace of the township, in the name thereof, 
and may recover, in such action, the balance in the super- 
visor's hands, and interest upon it, from the date it was 
received. 

Supervisor responsible for tools. — The supervisor is respon- 
sible for the care and safe-keeping of all tools belonging to 
his district, and on going out of office must report the 
number and kind thereof to the township trustee under 
oath, and the trustee must charge each supervisor, on com- 
ing into the office, with the whole amount of tools in his 
district, as shown by such report, and such supervisor will 
be liable for any loss or damage to the tools belonging to 
his district occasioned by his neglect, and suit may be 
brought therefor, in the name of the township, upon the 
complaint of the trustee, before any justice of the peace 
in such township. 

Compensation of supervisors. — For all necessary service 



SUPERVISORS. 183 



performed by supervisors they are entitled to receive one 
dollar per day, but are not entitled to receive any com- 
pensation for the number of days which other persons in 
their districts, liable to perform highway labor, are employed. 

His duties as to roads in incorporated towns. — When any 
road district or part thereof is within the limits of an in- 
corporated town, the supervisor thereof, in working such 
portion of the roads as lie within the limits of the town, 
must work the same according to the plan and under the 
direction of the board of trustees of such town. 1 

Duty of supervisor where road is changed by railroad. — 
When any of the highways within the state have been or 
may hereafter be changed from their original bed by the 
construction or running of railroads, supervisors within 
their respective districts have power, and it is made their 
duty, to open and keep in repair any roads so changed the 
same as if they remained where they were originally lo- 
cated. 2 

When the public road running along the bank of a stream 
becomes unsafe or inconvenient for use as a public high- 
way by the falling away of the bank, it will be the duty 
of the supervisor having such road In charge, forthwith 
to give the owner or occupant of the land over which the 
road passes notice to remove his fence back from the bank 
of the stream, far enough to admit of the opening and con- 
struction of a road, at least forty feet wide ; and if the 
owner or occupant of the land should neglect to remove 
the fence, as required by the notice, it will be the duty of 
the supervisor to call out the hands liable to work on roads 
in his road district, and forthwith remove the fence, doing 
to the owner or occupant no greater damage than is nec- 
essary for the removal of the fence. 

If any dwelling house or building should stand so near 
the stream that a sufficient space is not left for the road, 

1 1 R. S. 1876, 862. 2 1 R. S. 1876, 859. 



184 SUPERVISORS. 



then the supervisor may open the road in the rear of the 
dwelling house or other building. 

When the fence is removed, or road changed to the rear 
of the buildings, the owner of the land may file with the 
board of commissioners of the county where the same is 
situated, a claim for damages for removing the fence, or 
change of the road, and for the use of the ground over 
which the road shall pass ; and upon the filing of the claim 
it will be the duty of the board of commissioners to ap- 
point two reputable freeholders of the county to view the 
premises, and assess the damages of the claimant by rea- 
son of the appropriation of his land for the road, and the 
removal of his fence. 

The viewers must be sworn to faithfully and impartially 
assess the claimant's damages, and must make the assess- 
ment upon actual view of the premises, and report the 
same to the board of commissioners, and such board may 
allow or order the same to be paid out of the county 
treasury, Or, if they deem such assessment to be too high, 
may, in their discretion, appoint viewers to make the as- 
sessment, who shall be sworn, and proceed in like manner 
to assess such damages, and report the same to the board, 
and such assessment must be paid out of the county 
treasury. 

If the claimant is dissatisfied with the assessment, he 
may in like manner have a review of the premises, and an- 
other assessment of damages, but, if the re-assessment 
shall be for no greater sum than the first assessment, he 
must pay the costs of the review. 

Liability of supervisor. — If any supervisor fail to dis- 
charge any duty required of him by law, he will be guilty 
of a misdemeanor, and be subject to a fine of not less than 
five dollars, nor more than one hundred dollars. 1 But he 
can not be sued by an individual for failing to keep the 
highways and bridges of his district in repair. 2 

J 2R. S. 1876, 480. 2 2Ind. 143. 



SUPERVISORS. 185 



Nor can he be sued in a civil action upon the relation of 
any one for any failure to do his duty. 1 

He may, however, be sued for unnecessarily entering 
upon land adjoining a highway and taking material there- 
from, alleged to be for the repair of such highway, by the 
party injured. 2 

And in case a supervisor fails to perform a duty for 
which the statute provides a forfeiture, a suit maybe main- 
tained against him for such forfeiture, in the name of the 
township, b}' the trustee, and he may, in addition, be pros- 
ecuted for a misdemeanor, in the name of the state, for the 
same omission of duty. 3 

When suits for penalty may be brought. — Where the stat- 
ute provides a penalty for the violation of any provision of 
the supervisor's act, by any officer or person, and requires 
that suit shall be brought therefor within a given period of 
time, such provision must not be construed to limit the 
power to bring the action to such period. It may be pros- 
ecuted after the the time has elapsed, as well as before, but 
the officer who failed to bring the suit within the period 
fixed by statute will be subject to a penalty for such dere- 
liction of duty. 4 

1 11 Ind. 216. 2 4 Ind. 209. 3 5 Ind. 515. * 27 Ind. 56. 



186 TOWNS. 



CHAPTER XV. 

TOWNS. 

Survey of territory. 1 — It is provided by statute, that per- 
sons intending to make application for the incorporation 
of a town must cause an accurate survey and map to be 
made of the territory intended to be embraced in the lim- 
its of such town. The survey must be made by a practi- 
cal surveyor, and must show the courses and distances of 
the boundaries thereof, and the quantity of land contained 
therein, and the accuracy of the survey and map must be 
shown by the affidavit of the surveyor indorsed thereon, 
or annexed thereto, and may be in the following form •} 

Form of Surveyor's Affidavit. 

I, George W. Haire, a practical surveyor, do solemnly 
swear [or, affirm] that the survey and map hereto attached 
are correct, and accurately set forth and describe the terri- 
tory intended to be embraced in the limits of a town pro- 
posed to be incorporated in Lawrenceburgh township in 
said county. 

George W. Haire. 

Census to be taken. — An accurate census of the resident 
population of the territory must also be taken on a day 
not more than thirty days before the time of making ap- 
plication to the board of commissioners, as will be pres- 
ently exj)lained, which census must exhibit the name of 
every head of a family, residing within the territory on 
the day the census is made, and the number of persons be- 
longing to every such family, and it must be verified by 
the oath or affirmation of the person taking the census. 

1 1 R. S. 1876, 874. 



TOWNS. 187 



The statute must be construed to mean that all persons 
residing within the territory shall be included in the cen- 
sus. Hence, persons who may be boarding, and not 
strictly members of any family, provided they are actual 
residents of the territory, should be enumerated. 

The mode of taking the census is very simple. All that 
the statute requires, is that the name of every head of a 
family within the territory, shall be set down in one col- 
umn, and the number of persons belonging to such family 
shall be set down in another. 

The names of such persons need not be stated. The 
names of the heads of families enumerated should be num- 
bered, and, when the census is completed, should be added 
up as well as the number of persons in each family. 

The census must show the population of the territory on 
a particular day. 

When completed, the person taking the census should 
make an affidavit, to be attached to such census, in the 
following form: 

Form of Affidavit to Census 

State of Indiana, Dearborn County : 

Lorenzo D. Drain, being duly sworn, on oath states that 
the above is a full, true, and correct census, of all the resi- 
dent population of the above-described territory, on the 
15th day of September, 1877, and correctly and accurately 
exhibits the name of every head of a family residing in 
said territory, and also a correct statement of the number 
of persons belonging to such families on said day. 

Lorenzo D. Drain. 

Subscribed and sworn to, etc. 

The survey map and census, when completed and veri- 
fied, must be left in some convenient place within the ter- 
ritory, for a period of not less than twenty days, and, dur- 
ing such time, must be open to examination by any person 



188 TOWNS. 



having an interest in the proposed incorporation of the 
town. 

Petition to board of commissioners. — The persons desiring 
the incorporation of such town, must then make applica- 
tion, by petition, to the board of commissioners of the 
county, setting forth the boundaries of the territory which 
it is proposed to embrace within the limits of the town, the 
quantity of land included according to the survey, and the 
resident })opulation within the territory, as shown by the 
census. 

The petition must be subscribed by the applicants, and 
by not less than one-third of the whole number of quali- 
fied voters residing within the territory. The facts stated 
in the petition must be verified by oath or affirmation. 

The petition may be as follows : 

Form of Petition foe, the Incorporation of a Town. 

To the Honorable Board of Commissioners of Dearborn 
County, State of Indiana. 
Your petitioners respectfully represent to your board, 
that they reside within, and constitute not less than one- 
third of the qualified voters of, the following territory, 
which is situated in Lawrenceburgh township, county of 
Dearborn, and State of Indiana, and which is bounded as fol- 
lows : \_Here set out the boundaries.~] And they further show 
that, on the 16th day of September, 1877, they caused an ac- 
curate survey and map to be made of said territory, by one 
George W. Haire, a practical surveyor, by which it appears 
that there is contained within said boundaries, fifteen acres 
of land, which survey and map, duly verified by the afii- 
davit of said surveyor, is hereto attached as part hereof, as 
exhibit (A). And your petitioners further show that, on 
the 26th day of September, 1877, they caused an accurate 
census of the resident population of said territory to be 
taken by one Lorenzo D. Drain, which census, duly veri- 
fied, is also hereto attached and made part hereof, as ex- 



TOWNS. 189 



hibit (B) ; and that, as appears by said census, said terri- 
tory, on the said last-named day, contained a resident popu- 
lation of five hundred. 

Your petitioners further show, that they desire the in- 
corporation of a town, by the name of Greendale, embrac- 
ing the limits of the territory above described, and they 
pray that your honorable board will make an order declar- 
ing that said territory shall, with the assent of the quali- 
fied voters thereof, be an incorporated town by the name 
aforesaid, in accordance with the statute in such case pro- 
vided. 

Form of Affidavit to Petition. 

State of Indiana, Dearborn County : 

Edwin B. Dobell and William Probasco, two of the per- 
sons who signed the petition hereto attached, as applicants 
for the organization of a town within the territory in said 
petition described, being duly sworn, on oath say, that the 
facts alleged and set forth in said petition are true. 

Edwin B. Dobell, 
William Phobasco. 
Subscribed and sworn to, etc. 

Notice of presentation of petition. — The statute seems, only 
inferentially, to require that any notice of the presentation 
of the petition to the county board shall be given. 1 From 
the nature of the proceedings the persons whose interests 
are to be affected will hardly fail to be advised of the steps 
being taken. Some notice, however, of the time of making 
the application to the board ought to be given. The stat- 
ute making no provision for giving the notice, it is sug- 
gested that a written statement of the time when the ap- 
plication will be presented to the commissioners be depos- 
ited with the map, survey, and census, when they are left 
for the inspection of persons interested in the organization 
of the town, or that it be posted up at such place. The 

1 1 R. S. 1876, 874, sec. 4. 



190 TOWNS. 



board should not hear the petition until satisfied that 
proper notice has been given, of the sufficiency of which 
the commissioners must determine. 

Preliminary proof to be made by applicants. — Before hear- 
ing the petition, the commissioners must require proof, 
either by affidavit or by the oral examination of witnesses 
before them, that the survey, map, and census were left at 
a convenient place within the territory, for not less than 
twenty days, for examination by all persons interested in 
the incorporation of the town ; and, if the board is satis- 
fied that the requirements of the statute have been com- 
plied with, must then make an order declaring that the 
territory shall, with the assent of the qualified voters 
thereof, as hereafter explained, be an incorporated town by 
the name specified in the application, which must be differ- 
ent from the name of every other town in the state. The 
board of trustees must also include in the order a notice 
for a meeting of the qualified voters residing in the terri- 
tory, at a convenient place therein to be named by the 
board, on some day within one month from the adoption 
of the order, for the purpose of enabling such voters to 
determine whether the territory shall be an incorporated 
town. 1 

Notice of meeting. — The board must cause ten days' no- 
tice of the meeting to be given by publication in a news- 
paper, if one be published in the territory, and by posting 
up copies of the notice in ten public places in such terri- 
tory. One insertion of the notice in a newspaper will be 
a sufficient publication, and if no paper is published within 
the limits of the proposed town, it will be sufficient to post 
up the notices. 

Meeting of voters. — The voters must meet on the day and 
at the place named in the notice, and proceed to elect three 
persons, qualified voters of the territory, to be inspectors, 
who should be qualified in the same manner as inspectors 



1 47 Ind. 274. 



TOWNS. 191 



and judges are qualified at general elections, except they 
should perhaps be sworn by some officer authorized to ad- 
minister oaths, as the statute makes no provision that they 
shall administer the oath to each other, as in case of other 
elections. They will elect one of their number clerk, and 
forthwith proclaim that the poll is opened, and that they 
are ready to receive the ballots of voters. The polls must be 
opened at nine o'clock in the forenoon, and remain open until 
four o'clock in the afternoon, when they must be closed. 

How ballots shall be cast. — The qualified voters of the ter- 
ritory shall then proceed to vote by ballot, having on the 
tickets the word "yes," or the word " no ; " and if a major- 
ity of the ballots given at such meeting shall have thereon 
the word " no," the voters of such territory shall be deemed 
not to have assented to the incorporation thereof as a town, 
and no further proceedings shall be had in relation thereto ; 
but, if a majority of such ballots shall have thereon the 
word " yes," such territory shall, from that time, be deemed 
an incorporated town, to have continuance thereafter by 
the name and style specified in the order made by the 
board of county commissioners, and the inspectors of such 
meeting shall make a statement, showing the whole num- 
ber of ballots given at such meeting, the number having 
the word " yes " thereon, and the number having the word 
" no " thereon, which statement shall be verified by the 
affidavit of such inspectors, and shall be returned to such 
board of commissioners, at their next session, who, if sat- 
isfied of the legality of such election, shall make an order 
declaring that said town has been incorporated by the 
name adopted. 1 

This order of the board will be conclusive of the fact of 
the incorporation of the town, in all suits by and against 
such town, and the existence of the corporation will be 
taken notice of in all courts and places in the state without 
specially alleging the fact. 

138 Ind. 41. 



192 TOWNS. 



Inspectors must divide town into districts. — The inspectors, 
after they have returned such statement to the board of 
county commissioners, must proceed to divide the town 
into not less than three, nor more than seven, districts, 
having due regard to the equitable apportionment of popu- 
lation among the districts, and the convenience and con 
tiffuitv of each district. 

First election for town officers. — The statute provides, that 
the inspectors chosen at the meeting of voters to determine 
whether they will assent to the organization of the town, 
must preside at the first election for town officers, and will 
serve as inspectors thereof, and in receiving and canvass- 
ing votes will be governed by the laws then existing, for 
the election of township officers, so far as they may be ap- 
plicable. 

Subsequent elections for town officers. — Upon the subject 
of the election of town officers, after the first election, the 
statute further provides that an election shall be held for 
such officers, annually, on the first Monday in May, and 
that, at every such election, the preceding board of trustees, 
or any three of them, should act as the inspectors, and that 
at all such elections the polls should be opened at nine 
o'clock in the forenoon, and not finally closed until four 
o'clock in the afternoon. 

This was construed by the supreme court to mean that 
there could be but one poll opened in the town, and that an 
election held at which there was a voting place in each 
district or ward was illegal. 1 But since that decision was 
rendered, the legislature has adopted a new statute upon 
the subject of elections, as follows : 

"In city and town elections, each ward shall constitute a 
precinct: Provided, That the common council of any city, 
or the trustees of any town, may make such changes in the 
places of holding their elections, or divisions in precincts, 
in their respective cities and towns, as public convenience and 



1 49 Ind. 62. 



TOWNS. 193 



public good may require : Provided, That no such changes or 
divisions shall be made without giving due notice, at least 
one month before any election, either by publication in the 
newspaper having the largest circulation in the county in 
which such city or town k situated, or by posters put up 
in four of the most public places in such precinct. 

" Such council or trustees shall appoint three qualified 
voters in each precinct, one to act as inspector, and two as 
judges of elections, who shall have been freeholders and 
resident householders in such precinct for at least one year 
next preceding any election at which they may officiate. 

"Such inspectors and judges, when so appointed, shall 
constitute a board of election, which board of election 
shall have all the powers, and shall perform all the duties 
of boards of elections as hereinbefore specified." 1 

This seems to change the law as it is found in the act 
for the incorporation of towns, and to require that a poll 
must be opened in each district or ward of the town. 

What officers to be elected. — There must be elected at the 
first and every subsequent election, one trustee for each 
district in the town, and such trustees must reside in the 
district from which they are chosen ; and also, a clerk, as- 
sessor, treasurer, and marshal, who will, respectively, hold 
their offices until the first Monday in May next following, 
and until their successors are elected and qualified. The 
offices of clerk, assessor, treasurer, and marshal may all be 
held by the same person, if the board of trustees so order. 

How result shall be determined. — The person having the 
greatest number of votes for each office, as designated by 
the ballot for such office, shall be declared elected, and if 
two or more persons shall have an equal, and the highest, 
number of votes for the same office, the inspectors must, 
forthwith, determine, by lot, which shall be deemed elected, 
and the inspectors must make a certified statement, over 
their own signatures, of the persons elected to fill the sev- 

*Acts 1877, Special Session, 41, sec. 8. 



194 TOWNS. 



eral offices in the term, and file the same with the clerk of 
the circuit court of the county, within ten days after the 
day of election, and the board of trustees chosen at such 
election, under the act of 1852, had no power to do any act 
or adopt any ordinance, until the inspectors had substan- 
tially complied with the requirement of the statute. 1 The 
statute of 1875, however, provides that the failure of any 
inspector to file such statement within the time required by 
law, shall not invalidate the acts of any officer chosen at 
such election. 2 The clerk of the circuit court must make 
a record of such certified statement. 

Vacancy in office, how filled. — If a vacancy occur in any 
town office, it may be filled by the board of trustees at a 
special meeting, to be called for that purpose ; and, if the 
vacancy to be filled has occurred in the office of trustee, 
the appointment must be made from the district in which 
such vacancy occurred, and no appointment can extend be- 
yond the annual election. 

How board shall organize. — The board of trustees must 
elect one of their own number president of the board, who, 
as well as the other trustees and the officers elect, shall, 
within five days after the election, take and subscribe an 
oath or affirmation for the faithful performance of the du- 
ties of their respective offices. 

Town shall be a body corporate? — The president and trus- 
tees of the town, and their successors in office, will consti- 
tute a body politic and corporate, by the name of the town 
of , and will be capable, in law, to prosecute and de- 

fend suits to which the town is a party. 

Special meetings of voters. — The clerk of the town, by 
order of the board of trustees, may call special meetings 
of the qualified voters of the town, by giving ten days' no- 
tice thereof in a newspaper, if any be printed in the town, 
otherwise, by posting up such notice in five public places 

H5 Ind. 250; 37 Ind. 66. 2 Acts 1875, Special Session, 74. 

3 38Ind. 41. 



TOWNS. 195 



in the town. The notice must state the object for which 
the meeting is called. 

Powers of board of trustees. 1 — The board of trustees of 
towns have the following powers : 

First. To have a common seal, and to alter the same at 
pleasure. 

Second. To purchase, hold, and convey any estate, real 
or personal, for the use of the corporation, so far as such 
purchase may be necessary to carry out the objects contem- 
plated by the act providing for the incorporation of towns. 

Third. To organize fire companies, hook and ladder com- 
panies; to regulate their government and the times and man- 
ner of their exercise; to provide all necessary apparatus for 
the extinguishment of fires ; to make owners of buildings 
provide ladders and fire-buckets, which are declared by 
statute to be appurtenances to the real estate and exempt 
from execution, seizure, or sale, and if the owner shall re- 
fuse to procure suitable ladders and fire-buckets, after rea- 
sonable notice, the trustees may procure and deliver the 
same to him, and, in default of payment therefor, may re- 
cover of the owner the value of such ladder or fire-buckets, 
by suit before any justice of the peace in the proper town- 
ship, and costs accrued thereby; to regulate the storage of 
gunpowder and other dangerous material; to direct the 
construction of a place of safe deposit of ashes ; and may, 
under any order by them entered upon the proper book of 
the board, visit or appoint one or more fire-wardens to 
visit and examine, at all reasonable hours, dwelling-houses, 
lots, yards, inclosures, and buildings of every description, 
to discover if any of them are in a dangerous condition, 
and provide proper remedies for such danger ; to regulate 
the manner of putting up stove-pipes; to prevent out-fires 
and the use of fire-works, and the discharge of fire-arms 
within the limits of the corporation or such parts thereof 
as they may think proper ; to compel the inhabitants of such 



*Acts 1877, Regular Session, 144. 



196 TOWNS. 



town to aid in the extinguishment of fires and prevent its 
communication to other buildings, under such penalties as 
are provided by law ; to construct and preserve reservoirs, 
wells, pumps, and other waterworks, and to regulate the 
use thereof, and generally to establish other measures of 
prudence for the prevention or extinguishment of fires as 
they shall deem proper. 

Fourth. To declare what shall constitute a nuisance, and 
to prevent, abate, and remove the same, and take such 
other measures for the preservation of the public health as 
they shall deem necessary. 

Fifth. To restrain from running at large cattle, sheep, 
swine, or other animals. 

Sixth. To restrain and prohibit gambling and other dis- 
orderly conduct ; to suppress and prohibit the keeping of 
houses of ill-fame, and to authorize the seizure and destruc- 
tion of gambling apparatus; to punish intoxication, com- 
mon prostitutes and their associates, immoderate driving 
and riding ; to regulate or prohibit the use of fire-arms, 
fire-works, or other things tending to endanger persons 
and property ; to prevent interference with the free use of 
the streets and alleys of the town, and to preserve peace 
and good order and prevent vice and immorality. 

Seventh. To license, regulate, or restrain auction estab- 
lishments, street auctions, and all tables, alleys, machines, 
devices, and places for sports or games, kept for hire or 
pay, traveling peddlers, public exhibitions, and the sale of 
spirituous, vinous, malt, and other intoxicating liquors 
within the corporation. If such license is granted to sell 
spirituous, vinous, malt, and other intoxicating liquors, a 
sum, not exceeding the amount required by the statutes of 
the state for license to sell or retail intoxicating liquors, 
may be required to be paid into the treasury of the corpo- 
ration by the person so licensed, before receiving such li- 
cense. 

Eighth. To establish and regulate markets, and build 



TOWNS. 197 



market houses, and direct the location of slaughter 
houses. 

Ninth. To lay out, open, grade, and otherwise improve 
the streets, alleys, sewers, sidewalks and crossings, and keep 
them in repair, and to vacate the same. 

Tenth. To appoint street commissioners and fire wardens, 
not exceeding three. 

Eleventh. To prohibit the incumbrance of the sidewalks 
of the town and riding or driving thereon, except to cross 
the same. 

Twelfth. To insure the public proj>erty of the town. 

Thirteenth. To purchase, lay out, and regulate cemeteries. 

Fourteenth. To plant trees upon public grounds and 
along the streets of such town, and provide for their cul- 
ture and preservation, and to inclose any public square or 
other public grounds within the corporation. 

Fifteenth. To levy and collect annual taxes, not exceed- 
ing fifty cents on the hundred dollars' valuation, and twenty- 
five cents poll tax on all property subject by law to taxa- 
tion, and on each male dog a tax not exceeding one dollar, 
and on each female dog a tax of two -.dollars, to be paid by 
the owner thereof. 

Sixteenth. To make and establish such by-laws, ordi- 
nances, and regulations, not repugnant to the laws of the 
state, as may be necessary to carry into effect the provis- 
ions of this act, and to repeal, alter, or amend the same as 
they shall seem to require ; but every by-law, ordinance, or 
regulation, unless in a case of emergency, shall be pub- 
lished in a newspaper in such town, if one be printed 
therein, or posted in five public places, at least ten days be- 
fore it shall take effect. 

Seventeenth. To complete school houses in progress of 
erection, and to provide for the payment of the cost of the 
same ; to erect or provide such school houses as may be nec- 
essary for the use of the schools of the town, to keep them 
in repair, and to provide fuel and other necessaries therefor. 



198 TOWNS. 



Eighteenth. To construct all necessary wharves and land- 
ings for steamboats and other vessels, where the town is 
situated on the bank of any navigable stream or water- 
course. 

Nineteenth. The board of trustees shall have power to 
levy and collect annual taxes, not exceeding thirty cents 
on the hundred dollars' valuation, on all property subject 
by law to taxation, for the support of town schools within 
the corporation. 

Board may provide for assessment of fines. — The board of 
trustees also has power to provide for fines, penalties, and 
forfeitures for violation of any of the provisions of the act 
for the incorporation of towns, and for the violation of any 
by-law or ordinance by them established, not exceeding 
ten dollars for any one offense, which may be recovered in 
a civil action in the name of the corporation. If, however, 
the offense consists in the violation of any ordinance re- 
quiring a license, the fine to be assessed must not be less 
than the amount required to be paid for such license, al- 
though it may exceed ten dollars. 

How money must be appropriated. — All money received 
belonging to towns, however derived, can only be appro- 
priated for the objects and for defraying the expenses con- 
templated by the statute providing for the incorporation 
of towns, and which accrue or necessarily arise in the ex- 
ercise of the powers granted by the act for the incorpora- 
tion of towns. No appropriation of money can be made 
without an order to that effect entered upon a proper book 
to be kept for that purpose by the board of trustees. 

Claims against town. — No claim against a town can be 
audited or allowed by the board of trustees unless it be 
made out fully and itemized. Accounts against towns, 
when audited, must be numbered from one upward in the 
order they were presented, and a memorandum of the order 
must be entered upon a book to be kept exclusively for that 
purpose, and no claim or account can be lawfully paid, un- 



TOWNS. 199 



less audited and allowed by the board, and no money can 
be drawn from the treasury except upon a warrant from 
the treasurer, signed by the president of the board and at- 
tested by the clerk. 

When town trustees may issue bonds to pay for school 
houses. — When a town, by the action of the school trustees, 
has purchased any ground and building or buildings, or has 
commenced the erection of any school buildings, or has 
created a debt for such purpose, and the school trustees 
have not sufficient funds to pay for or to complete such 
building, or to pay the debt, the trustees of the town 
may issue bonds to any amount not exceeding fifty thou- 
sand dollars in the aggregate, in denominations of not less 
than one hundred dollars, and not more than one thousand 
dollars. 

Before the bonds can be issued, the school trustees must 
file with the trusetes of the town a report, under oath, 
showing the estimated or actual cost of the ground or build- 
ing, or of both, or the amount required to complete the 
buildings, or to pay the debt, as the case may be. 1 

The report may be, in substance, as follows : 

Form of Eeport to Town Trustees of Cost of Ground 
and Building. 

To the Board of Trustees of the Town of Moore's Hill, in 
the County of Dearborn, State of Indiana. 
The undersigned, school trustees of the town of Moore's 
Hill, respectfully report to your honorable board, that said 
town has, by the action of the undersigned, as such school 
trustees, purchased lot 'No. 28, as marked on the original 
plat of said town, for the purpose of erecting thereon a 
building for school purposes, and has commenced the erec- 
tion thereon of a building for the use of the common 
schools of said town, and that a debt has been thereby 

x l R. S. 1876, 343; 10 Ind. 70; 15 Ind. 425; 44 Ind. 83. 



200 TOWNS. 



contracted, which they, as such school trustees have not 
sufficient means to pay. 

They further report, that — 

The cost of the ground so pur- 
chased is $ 500 00 

The cost of the building is 10,000 00 

Total cost $10,500 00 

We therefore ask that your board will provide for the is- 
-sue of the bonds of said town, to an amount necessary to 
raise funds sufficient to pay for said ground and for the 
completion of said school building. 

Joel C. Pennington, 
George Schabel, 
John H. Noble, 

School Trustees, etc. 
Subscribed and sworn to, etc. 



The above form of report may be varied to conform to 
the facts in each particular case. If the cost of the build- 
ing has not been definitely ascertained, it may be estimated, 
as accurately as possible, and will be so stated in the re- 
port. 

Town trustees must pass ordinance. — If the report be suf- 
ficient, the town trustees must, at once, pass an ordinance 
providing for the issue of the bonds. They may be made 
payable at any place that may be designated in the bonds, 
the principal in not less than one year, nor more than 
twenty years, after the date of the bonds, and the interest 
annually or semi-annually, which must also be designated 
in the bond ; and the board of trustees may, from time to 
time, sell as many of the bonds as may be necessary to 
raise the means required ; but the bonds must be sold for 
the best price that can be had, for cash, and for not less 
than ninety -four cents on the dollar. 

Proceeds of bonds, how disposed of. — The proceeds of the 



TOWNS. 201 



sales of the bonds must be paid to the school trustees, to 
be applied by them in the payment of the debt, or for the 
erection or completion of the school building; but, before 
they will be entitled to receive the same, they must file, 
with the county auditor, a bond payable to the State of 
Indiana, in a sum not less than the full amount of the 
money to be paid to thern, with surety, to be approved by 
the auditor, conditioned for the faithful and honest appli- 
cation of the money to the purpose for which it was pro- 
vided, and the trustees and their sureties will be liable 
upon the bond, for any loss, waste, or -misapplication of 
such money, as in case of the waste or loss of school reve- 
nue. 

Trustees must levy tax to pay interest. 1 — The board of trus- 
tees must, at the same time and in the same manner that 
the tax is levied for general purposes, levy a special addi- 
tional tax sufficient to pay the interest upon the bonds, and 
the principal falling due, not exceeding, in any one year, 
fifty cents on one hundred dollars of taxable property, and 
one dollar on each poll, which tax must be assessed and 
collected, and the treasurer of the town must keep an ac- 
curate account of the revenue arising from such special tax, 
and must, in his reports, when required by the town au- 
thorities, show the amount thereof received, the amount 
disbursed, and the amount, if any, remaining delinquent. 
He can only pay out the money by authority of the board 
of trustees of the town, and he must not permit the same 
to be applied to any other purpose than the payment of 
the principal and interest of the bonds, and he will be lia- 
ble, upon his bond, for any misapplication of the money. 
Persons residing outside of the town issuing such bonds, 
who send their children to the schools taught in the build- 
ing paid for by such tax, or who have been transferred to 
the town for school purposes, will, with their property 
owned by them in the township in which the town is lo- 

x 44 Iud. 83 ; 14 Ind. 306 ; 15 Ind. 357. 



202 TOWNS. 



cated, be liable to the tax to pay the bonds, the same as if 
they resided in the town. The school trustees of the town 
may, however, if they see proper to do so, admit pupils to 
such schools from outside the limits of the town, upon pay- 
ment of tuition therefor, without subjecting the property 
of their parents to such tax, provided the schools are not 
crowded, and the admission of such pupils will not inter- 
fere with the progress of the children residing within the 
town. 

Surplus special school revenue may be paid on indebted- 
ness. — By the act of March 3, 1877, school trustees of towns 
are authorized to pay over to the board of trustees of the 
town any surplus special school revenue in the hands of 
such school trustees, not necessary to meet current ex- 
penses, to be applied to the payment of the principal or 
interest of any indebtedness incurred in the purchase or 
erection of school buildings. 1 

When town may borrow money for other purposes? — No in- 
corporated town has power to borrow money or incur any 
debt or liability for any other purpose than to provide 
school houses and to pay debts contracted therefor, unless 
the citizen owners of five-eighths of the taxable property of 
the town, as evidenced by the assessment roll of the pre- 
ceding year, shall petition the board of trustees to contract 
such debt or loan, and the petition must have attached an 
affidavit verifying the genuineness of the signatures. The 
petition may be as follows : 

To the Board of Trustees of the Town of Allensville, County 
of Switzerland, State of Indiana. 
The undersigned, citizen owners of five-eighths of the 
taxable property of the town of Allensville, in said county, 
as evidenced by the assessment roll of said town for the 
year [insert the year preceding the date of the petition^, 
respectfully petition your honorable board to borrow, upon 

x Acts 1877, Regular Session, 18. 2 44 Ind. 83; 45 Ind. 250. 



TOWNS. 203 



the credit of said town, the sum of five thousand dollars, 
for the purpose of [here state the object for which the loan is 
asked'], or to purchase upon the credit of said town, at a 
sum not exceeding five thousand dollars [here state the 
property or thing to be put chased]. 

Affidavit. 

State of Indiana, Switzerland County. 

A B , being duly sworn, on oath states that the 

signatures of the petitioners attached to the annexed peti- 
tion are genuine. 

A B . 

Subscribed and sworn to etc. 

Duty of trustees if petition is sufficient. — The board of 
trustees, if satisfied that the petition has the requisite 
number of signatures of persons entitled to sign the same, 
may grant the prayer thereof; and to pay any debt the 
trustees may thereby create, they are required to add to the 
tax duplicate of each year successively a levy sufficient to 
pay the annual interest upon such .debt or loan, with an 
addition of not less than five cents on each one hundred 
dollars of taxable property, to create a sinking fund for the 
liquidation of the principal thereof. 

Bonds of town officers. — The clerk, assessor, treasurer, 
and marshal, within ten days after their election, must 
each give bonds, payable to the State of Indiana, with 
freehold sureties, in such amount as the board of trustees 
may direct; but the bond of the treasurer and marshal 
shall each be in double the amount of the estimated tax 
duplicate for the current year. 

Books, papers, etc. — All books, vouchers, moneys, or other 
property belonging to the corporation, and in charge or 
possession of any officer of the same, whose term of office 
has expired, must be delivered to his successor when quali- 
fied. 



204 TOWNS. 



When the amount of tax must be determined. — The board 
of trustees must, before the third Tuesday in May of each 
year, after the town shall have been incorporated, deter- 
mine the amount of general tax for the current year ; but 
the tax for the year in which the town is incorporated may 
be determined at any time by the board of trustees. 

Assessment of property. — The assessor must assess all 
property liable for taxation in the town, under such rules 
and regulations as the board may prescribe, and shall make 
return of his assessment roll to such board, on or before 
the second Tuesday in May of each year, or at such other 
time as the board of trustees may direct. 

Notice of assessor's return. — The trustees shall cause the 
clerk of the corporation to put up notices in three or more 
public places in the town, stating that the assessment roll 
is returned and is open for inspection, and that, on a day 
and at a place specified in the notice, the trustees will 
hear and decide all complaints of, and appeals from, the 
acts of the assessor. 

Levy of tax. — When the assessment roll shall have been 
corrected and completed, the trustees must levy a tax upon 
the taxable property of the town, to such an amount as 
they may deem necessary, and shall set opposite the name 
of each person taxed, a description and valuation of the 
property charged therewith, and the amount of tax as- 
sessed against such person ; and, when such tax list shall 
have been made, they shall cause a copy thereof, with a 
warrant annexed, to be delivered to the marshal of such 
town. The original assessment roll and tax list shall be 
deposited with the treasurer of such town, who is charged 
with the safe custody of the same. 

Warrant for collection. — Such warrant must be under the 
seal of the corporation, signed by the president and trustees, 
or a majority of them, and attested by the clerk, and com- 
manding the marshal to collect the taxes specified in his 
duplicate within ninety days, and pay over the same, and 



TOWNS. 205 



make return of the warrant to the treasurer of the town. 
Such trustees may renew the warrant for any period not 
exceeding thirty days. 

Powers of marshal in collecting taxes. — The marshal shall 
collect the taxes on the duplicate when so required, and 
shall have the same power to enforce collections, and shall 
be governed by the same rules and regulations as county 
treasurers and county auditors, and shall have authority, 
in like manner, to collect by distress and sale, and to make 
conveyances and certificates of real estate sold by virtue of 
such sale, which sale, if at a county-seat, shall be at the 
door of the court house, or place of holding courts ; and, 
if not at the county-seat, it shall be held at the door of the 
town -hall, or place of meeting of the board of trustees, and 
the clerk of the board shall perform the like duties, at such 
sale, as are required of the county auditor at a sale for 
state and county taxes, and all deeds or conveyances for 
lands so sold for taxes shall be prima facie evidence of the 
validity of such purchase. 

Real estate sold for taxes may be redeemed. — Any real es- 
tate sold for taxes will be redeemable under the same regu- 
lations and restrictions as real estate sold for county and 
state taxes is made redeemable. All moneys for the re- 
demption of such real estate shall be paid to the treasurer 
of the corporation. 

Eeal estate sold for the payment of state and county 
taxes, may, under the provisions of an act approved March 
3, 1877, be redeemed at any time within two years after the 
sale, by any person having an interest in the lands, mak- 
ing payment of the taxes and penalty as follows : 

If redeemed within six months, the amount named in 
the certificate, and fifteen per centum in addition there- 
on, must be paid to the treasurer of the county; if re- 
deemed after six months, and within one year, the amount 
named in the certificate and twenty -five per centum there- 
on must be paid ; and if after one year, and within two 



206 TOWNS. 



years, forty per centum must be added to the amount of 
the certificate ; and whenever such redemption is made, all 
taxes that have been paid on the real estate after the sale 
must be repaid, with six per cent, per annum interest there- 
on from the date of such payment. 

The lands of persons of unsound mind, infants, and 
married women sold for taxes, may be redeemed by them 
at any time within two years after the removal of the dis- 
ability. 1 

Duplicate may be delivered to county auditor. — The trus- 
tees of the town may, at their option, deliver the tax du- 
plicate to the auditor of the proper county on or before the 
first day of August in each year, instead of the marshal 
of such town, and the auditor shall enter such tax; and, 
if delinquent, the interest and penalty thereon, upon his 
duplicate. And in case the trustees elect to do so, the trea- 
surer of such county must collect the corporation taxes 
upon such duplicate as other taxes are collected, and pay 
the same over to the treasurer of such corporation. The 
auditor and treasurer shall be allowed and paid by the cor- 
poration the same compensation paid by the county for like 
services. 

Town treasurer's duties. — The treasurer of every incor- 
porated town shall so keep his accounts as to show when 
and from what sources all moneys paid him have been 
derived, and to whom and when such moneys or any part 
thereof have been paid. The treasurer shall grant all 
licenses authorized by law, upon the presentation of the 
receipt of the marshal that the money therefor has been 
paid to such marshal. His books, accounts, and vouchers 
shall at all times be subject to examinations of the board 
of trustees, and it is made their duty to examine the 
same at a regular meeting of such board, on some day 
between the first and last Monday of April in each year, 
and have settlement with the treasurer. 



1 Acts 1877, Regular Session, 143. 



TOWNS. 207 



Receipts and expenditures to be published. — It shall be 
the duty of the board of trustees, immediately after the 
annual settlement with the treasurer of the corporation, to 
publish in a newspaper, if one be printed therein, or if there 
be no newspaper, then by posting in three or more public 
places, an exhibit of the receipts and expenditures, speci- 
fying the sources of such receipts, what appropriations 
were made, for what objects, and the specific amount 
of each. 

Duty of clerk. — The clerk of the town shall have the cus- 
tody of the records, books, and papers of the board of 
trustees, and shall attend all meetings and record proceed- 
ings of the board, and shall perform all other duties apper- 
taining to his office and required of him by the by-laws. 

Marshal's powers and duties. — The marshal shall possess 
the powers and be subject to the liabilities possessed and 
conferred by law upon constables, in executing the orders 
of the trustees or enforcing the by-laws and ordinances of 
the town. 

Streets and side-walks. — The board of trustees shall su- 
perintend the grading, paving, and improving of streets 
and the building and repairing of side-walks. 

Duties of fire-wardens. — The fire-wardens shall attend all 
fires and give their personal superintendence to extin- 
guish the same, and do all other acts required by the by- 
laws, and obey all orders given by the board of trustees 
in relation to the fire department. The town trustees are, 
by virtue of their office, fire-wardens. 

Board of trustees may fix fees of other officers. — The trus- 
tees, clerk, assessor, treasurer, and marshal shall respectively 
receive for their services such compensation as the board 
of trustees, in their by-laws, may see proper to allow 
them. The board of trustees must cause to be paid all other 
officers of the town, for their services, a just and reason- 
able compensation. The language of the statute implies 
that the trustees have absolute power to fix the compensa- 



208 TOWNS. 



tion of the clerk, assessor, treasurer, and marshal at what- 
ever sum they choose, without regard to whether it may- 
be adequate ; but as to all other officers, it seems to be ob- 
ligatory upon them to fix a just and reasonable compensa- 
tion. 

Improvement of streets, etc. — Whenever two-thirds of all 
the resident owners, in number or in value of real estate, 
bounding both sides of any street, not less than one square, 
shall petition to have such street or alleys connected there- 
with graded, paved, or otherwise improved, or the side- 
walks thereof built or repaired ; or when two-thirds of the 
owners of real estate, in number or in value, on one side 
of such street, shall desire a side-walk on that side, it shall 
be the duty of such board to levy and cause to be collected 
by tax upon all the owners of all real estate or lots upon such 
street or part of a street, according to the last appraised 
valuation of said real estate, exclusive of any improvement 
that may be made thereon, such sum of money as is nec- 
essary for the improvement of such street or side walk, as 
in the petition requested. At the time of making such 
levy, the board must fix the nature, extent, and specifica- 
tions of the proposed improvements ; and any person upon 
whose real estate any such tax is levied may satisfy the 
same, or any part thereof, by labor done and materials fur- 
nished for the proposed improvement, under the direction, 
and to the acceptance of the board. If any person against 
whose real estate a tax shall be levied, for the purpose of 
building or repairing a side-walk, shall have previously 
built a side-walk adjoining to the whole of the real estate 
so taxed to the acceptance of the board, or shall afterward 
build or repair the same within the time prescribed by the 
board, and to their acceptance, it will be a full discharge 
of such tax for the improvement of side-walks 

Inhabitants of towns subject to road tax. — The inhabitants 
of towns are not, however, exempted from the payment of 
highway tax, legally assessed, by reason of any improve. 



TOWNS. 209 



ments made upon the streets under the direction of the town 
authorities, and the territory of the town may be formed 
into road districts. 1 

But supervisors, in working such districts, must do so 
under the direction and according to the plan of the board 
of trustees of the town. 

Proceedings to include out-lots. — When two-thirds of the 
owners of a tier of out-lots, adjoining an incorporated town, 
shall sign a petition asking that the corporate limits of said 
town be extended so as to include said out-lots, the board of 
trustees of the town shall cause the petition to be recorded, 
and make an order that such tier of out-lots shall thereafter 
be included in, and constitute a part of, the corporation. 

Form of Petition to Include Out-lots. 

To the Honorable Board of Trustees of the town of 

The undersigned petitioners respectfully represent to 
your board, that they constitute two-thirds, in number, of 
the owners of a tier of out-lots numbered from one to one 
hundred, and adjoining said town, on the east side thereof, 
as follows : [Here describe the location of the tier of lots.] 

And they ask that the corporate limits of said town be 
so extended as to include said tier of lots. 

[Petitioners' names.'] 

Upon the filing of the petition the board of trustees, if 
satisfied that it has the requisite number of signatures, may 
make an order to include the lots within the limits of the 
town as follows : 

In the matter of the petition of , 

and others, to include a certain tier 

of out-lots within the corporate 

limits of the town of 

Now come , and others, and present to the board 

of trustees their petition asking for the corporate limits of 

1 41 Ind 580.. 



210 TOWNS. 



the town to be so extended as to include a certain tier of out- 
lots, which petition reads as follows : \_Rere copy in full. ~\ 

And, it appearing to the board that said petition is signed 
by at least two-thirds of the owners of said tier of out-lots, 
it is, therefore, ordered that the corporate limits of the 
town of be, and they hereby are, extended so as to 

include, within the corporate limits of said town, all of 
said out-lots as described in said petition, and shall be 
henceforth included within, and constitute a part of, the 
incorporated town of 

Trustees may annex lots that have been platted. — When- 
ever there shall be lots laid off and platted adjoining to, or 
within the town, and a record of the same is made in the 
recorder's office of the proper county, the board of trustees 
may, by a resolution, extend the boundary of the town, so 
as to include such lots, whether improved or not, and the 
lots so annexed will thereafter form a part of the town, 
and be within the jurisdiction of the same. A copy of 
such resolution, with plat or map of survey, defining the 
metes and boundaries of such addition, must be immedi- 
ately filed and recorded in the office of the recorder afore- 
said. The tier of out-lots and the lots annexed, as last 
specified, shall be included in, and constitute a part of such 
corporation, and the inhabitants residing thereon, and 
owners thereof, will be subject to all the laws and regula- 
tions, and entitled to all the privileges, of the corporation. 1 

The statute does not contemplate the filing of a petition 
in case the lots are laid off and platted, and a record of 
such plat made in the recorder's office of the county. The 
resolution of the board may be similar in form to the order 
made upon a petition for the annexation of a tier of out- 
lots, and such form may be varied to conform to the facts. 

How territory may be annexed not platted or recorded. — 
"When any town shall desire to annex contiguous territory 

^Ind. 525. 



TOWNS. 211 



thereto, not platted or recorded, the trustees shall present 
to the board of county commissioners a petition setting 
forth the reasons for such annexation, and shall accompany 
the same with a map or plat accurately describing by metes 
and bounds the territory proposed to be attached. Such 
trustees shall give thirty days' notice, by publication in a 
newspaper printed in such town, if any; otherwise, in the 
county ; or if none, then by posting up such notice in five 
or more public places within the corporation ; a copy of 
such notice shall be served on the owner or owners of such 
territory, if known, and are residents of the county. The 
supreme court has held that the reasons stated in the fol- 
lowing form are sufficient to justify the county board in 
making an order annexing the territory. 1 

Form of Petition by Town Trustees to the County 
Board to Annex Territory. 

To the Honorable Board of Commissioners of the County of 
Montgomery, State of Indiana. 

The undersigned petitioners constituting the board of 
trustees of the town of CrawfordsvilleL, respectfully repre- 
sent to your honorable board that they desire that certain 
territory contiguous to said town be annexed thereto. Your 
petitioners show that said territory has not been platted or 
recorded, and that the same is fully and accurately de- 
scribed, by metes and bounds, in a map or plat which is 
hereto attached and made part of this petition as exhibit 
(A), and which is duly verified by affidavit. 

Your petitioners show that the said town desires the an- 
nexation of said territory thereto, for the following rea- 
sons : 

1. The limits of the said town, as they now exist, are such 
as to give great inconvenience to the citizens and officers 
of the town, and also to make the burden of taxation very 
unequal. 

^Olnd. 272. 



212 TOWNS. 



2. The present boundaries of the town, including the 
platted lots, divide the town into separate divisions, leav- 
ing property between the divisions thus formed, and in 
thickly populated parts of the town entirely without said 
boundaries, causing some of the streets to lie partly within 
and partly without said town. 

3. There are at this time about sixty corners to the boun- 
dary of the town, whereas, should the boundaries now 
prayed for be established, the limits of the corporation 
would then be a rectangular parallelogram, and this parallel- 
ogram would be formed by including the extremes of the 
present corporation on the east and west, and on the north 
and south, making it more convenient for the citizens, and 
far easier for the officers of the corporation to perform 
their respective duties. 

4. Many persons outside of the present corporation, and 
within the boundaries prayed for, have attached themselves 
thereto for school purposes, and it is but justice that they 
should assist, by means of their taxes, in supporting said 
schools. 

5. The corporation is in need of the increased revenue 
which would result from the taxes levied upon the territory 
sought to be annexed, for the following reasons, viz. : 

1. To provide more suitable and adequate means for the 
prevention of fires. 2. For the erection and keeping in re- 
pair a suitable house for the convenience and advantage of 
the citizens of the town, and also of the venders of market 
produce. 3. For the purpose of purchasing, laying out, 
and regulating a suitable and convenient town cemetery. 

Your petitioners further show that the several tracts, lots, 
and parcels of ground included within said territory, be- 
longs to [here set out the names of the owners of the territory], 
and who each own the several pieces, parcels, and lots 
upon which their names are written upon the said map or 
plat. Wherefore your petitioners pray that said territory 



TOWNS. 213 



may be annexed to said town, according to the statute in 
such case provided. A £ , 



C D 

E F 



5 

Trustees. 

Proceedings before commissioners. — The board of county 
commissioners, upon the reception of such petition, shall 
consider the same, and shall hear testimony offered for or 
against said annexation; and if, after inspection of the 
map, and the testimony being heard, such board is of the 
opinion that the prayer of such petition should be granted, 
it shall cause an entry to be made on the order-book, 
specifying the territory annexed, with the boundaries 
thereof, according to the survey, which entry, or an at- 
tested copy thereof, shall be conclusive evidence in all 
courts of such annexation. 

The reasons which will justify the annexation of terri- 
tory to an incorporated town are not denned by statute. 
It is certainly not necessary that all the grounds set forth 
in the foregoing form should exist. 

The county bound should exercise a sound discretion in 
each particular case. If the petition plainly shows that 
the annexation sought is necessary for the convenience and 
accommodation of the people and the growth and business 
of the town, and to equalize the burdens and benefits of the 
people interested, and the commissioners are satisfied of the 
truth of the petition, the prayer thereof should be granted. 

Notice of petition. — The notice should be given as required 
by the statute in all cases. The names of the owners of the 
tracts of land should be fully and correctly stated. It has 
been held, however, that if the land of a deceased person is 
correctly described in the petition, the notice will be good, 
although the land is designated as belonging to the heirs 
of such deceased persons, without giving their names. 1 

The notice given by the trustees should describe the terri- 

^Olnd. 272; 18 Ind. 203. 



214 TOWNS. 



tory proposed to be annexed, and besides giving the name 
of the owners of the lands included within the limits of the 
proposed addition, should state at what session of the board 
of county commissioners and the day of the session on which 
the petition will be presented. The statute does not fix the 
number of insertions which shall be made in a newspaper if 
notice is given by publication, nor is it specified whether 
the notice must be given thirty days before the day on 
which the petition is to be presented, or before the. first 
day of the session of the county board at which the appli- 
cation is to be made. If the first insertion of the notice be 
made thirty days before the first day of the term at which 
the petition is to be presented, and one publication thereof 
each week thereafter until the meeting of the board, it 
would seem to be a sufficient compliance with the statute. 

No appeal lies from the action of the board, and its de- 
cision will be final. 1 

Jurisdiction of trustees. — The trustees have jurisdiction 
over any commons or public grounds belonging to the 
town, and have power to regulate, with the consent of a 
majority of the owners thereof, the banks, shores, and 
wharves of that portion of any navigable stream within 
its corporate limits ; but no ferries heretofore, or which 
may hereafter be established by law, can be prejudiced or 
in any manner affected by reason of such jurisdiction of 
the trustees. 

Sow corporation may be dissolved. — When an application, 
signed by one-third of the legal voters of any incorporated 
town, shall be presented to the board of trustees, in 
writing, asking for a dissolution of the corporation, setting 
forth the reasons therefor, it will be competent for the 
board, if they deem the reasons good, to call a meeting of 
the voters of the town, by giving ten days' notice thereof, 
to determine whether such corporation shall be dissolved. 

x 35 Ind. 51, 177. See also 5 Ind. 547. 



TOWNS. 215 



Form of Petition to dissolve Corporation. 

To the Honorable Board of Trustees of the Town of Center 
Square. 

The undersigned, citizens of the incorporated town of 
Center Square, being one-third of the whole number of 
the legal voters of said town, do hereby petition your hon- 
orable board for a dissolution of the corporation of said 
town, for the following reasons : 

First. The population of said town has become so small 
that the maintenance of a town organization is burdensome 
and unnecessary, and without any benefit to the inhabit- 
ants of the town greatly increases their taxes. 

Second. Because, on account of the reduced population 
of the town, there is no longer any necessity for the officers 
required to maintain a town organization, there being no 
longer any official duties for them to perform which can 
not be as well discharged by the officers of the township, 
and at less cost and expense to the inhabitants of the town. 

Third. There is no necessity for the continuance of said 
corporation, because the said town is not growing in 
population, nor is its business increasing, but the con- 
trary. 

Fourth. Because said corporation has only had a nom- 
inal existence for five years last past ; and your petitioners 
believe that a majority of the inhabitants desire that the cor- 
poration be dissolved. Wherefore they pray that your board 
will proceed to call a meeting of the voters of the town, 
to determine whether said corporation shall be dissolved. 

[Petitioners' names.'] 

If the board of trustees deem the reasons stated in the 
petition good, they may at once give ten days' notice, that 
on a day named, and at a place or places specified, a poll 
will be opened to determine whether the corporation shall 
be dissolved. The notice may be given by publication in 



216 TOWNS. 



a newspaper, if one be published in the town, and also by 
posting up a written or printed copy of such notice in at 
least ten of the most public places in the town. 

The board of trustees shall preside at such meeting, and 
a poll shall be opened, as at other corporation elections, 
and the voters shall vote by ballot, " yes " or " no." If a 
majority of all the votes given shall have thereon the word 
" yes," and such votes shall have been given by two-fifths 
of all the legal voters in such town, a statement of the 
vote, signed by the president, and attested by the clerk, 
shall be filed in the clerk's office of the county, and such 
town shall, at the expiration of six months from the time 
of holding such meeting, cease to be a corporation, and 
the property belonging to such corporation, after the pay- 
ment of its debts and liabilities, shall be disposed of in such 
manner as a majority of the voters of such town, at any 
special meeting thereof, may direct. 

USTo such dissolution shall affect the rights of any person 
in any contract or agreement to which such corporation is 
a party. 

In a proper case, the court will interpose and dissolve a 
town corporation, but it has been held that the statutory 
mode for the dissolution of the corporation must be fol- 
lowed where it may be done. 1 If, however, the members 
of the board of trustees should resign, remove, or die, and 
their successors should not be elected, so that there would 
be no proper authority to whom a petition for dissolution 
could be presented, a case would arise where the courts 
could properly act. 

Regularity of organization presumed, when. — If any in- 
corporated town shall institute any suit in its corporate 
name, it shall not be required to show its compliance with 
the provisions of the statute as to its organization, or pub- 
lication of by-laws, or ordinances, unless the same is de- 
nied by affidavit. 

1 26 Ind. 308. 



TOWNS. 217 



Old toicns may incorporate under present law. — Any town 
incorporated previously to the enactment of the statute 
providing for the incorporation of towns now in force, may, 
by a resolution of the board of trustees or other municipal 
board thereof entered upon the record book of the corpo- 
ration, become incorporated under the present law. The 
acceptance of the provisions of the general law will be 
deemed a surrender of all rights and 1 franchises acquired 
under any former act of incorporation, or under any acts 
amendatory thereto. 

This step may be taken by the board of trustees whenever 
deemed proper, without any petition therefor, or without 
submitting the question to a vote of the citizens of the town. 

All the statute requires in such case is that the board 
shall adopt a resolution surrendering the original charter, 
and accepting the provisions of the present law, and that a 
copy of the resolution be filed with the clerk of the circuit 
court of the county in which the town is situated. 

The resolution of the board may be in substance as follows : 

Form of Eesolution op Board op Trustees accepting 
the Provisions op the General Law. 

Whereas, the town of Yevay was incorporated as such 
town, by a special act of the General Assembly of the 
State of Indiana, approved January 21, 1846, and accepted 
the provisions of said act, and has ever since enjoyed the 
rights and franchises granted by said act ; 

And whereas, the interests of the inhabitants of the 
town require that it be incorporated under the provisions 
of an act of the General Assembly of the State of Indi- 
ana, approved June 11, 1852, entitled an act for the incor- 
poration of towns, defining their powers, providing for the 
election of the officers thereof, and declaring their duties, 
and the acts amendatory thereto ; 

Therefore, resolved, by the board of trustees of said town, 
that the provisions of the last-recited act be and they hereby 



218 TOWNS. 



are accepted in the place of the provisions of said special 
act, and that said town be and the same is hereby declared 
to be an incorporated town under the provisions of the said 
act of June 11, 1852, and the acts amendatory thereto, by 
the name and style of " the town of Vevay," and a duly 
certified copy of this resolution is ordered to be filed with 
the clerk of the Switzerland circuit court, to be by him en- 
tered upon the proper record in his office. 

•Upon the acceptance of the provisions of the general 
law, the trustees, and all other officers, by whatever name 
designated, will continue to discharge their several duties, 
but by the name of the office as designated by the law 
now in force, until superseded by the general election. 

JYo liability of town to be affected. — No liability of such 
town will be in any way impaired by such change of incor- 
poration, but will be as binding upon the town as under 
the former charter. 

Penalty for violating ordinance, how enforced. — Any person 
violating the provisions of any ordinance of a town, to 
which there may be a penalty affixed, may be prosecuted 
before a justice of the peace of such town, upon a warrant 
issued by such justice, as in cases of misdemeanors ; and 
such person, upon conviction, shall stand committed until 
the judgment and costs are paid or replevied. And in de- 
fault of payment or replevy of such judgment and costs, 
the defendant, unless a female, may be adjudged and re- 
quired to pay the same by manual labor upon the streets 
or other public works of the town, under the control of the 
marshal of the town, for which labor such defendants shall 
be allowed, on such judgment and costs, seventy-five cents 
per day, and it is the duty of the marshal, or such other 
officer as the board of trustees of the town may direct, to 
work such defendant not less than six nor more than ten 
hours per day, according to the season of the year, and 
each evening to return him to the custody of the keeper 
of the prison in whose custody the defendant was com- 



TOWNS. 219 



mitted, and upon full payment of the judgment and all 
costs, the defendant will be released. 

The board of trustees of any town has power to pass 
by-laws to enforce such manual labor by the use of such 
means and force as maybe deemed right and proper by the 
board, and the marshal also has full power to use all proper 
means to carry out and enforce the performance of the 
judgment by the defendant. The defendant may be com- 
mitted to the town prison, if there be one ; if not, to the 
county prison of the county in which the town is situated. 
The keeper of the prison is bound to receive the defendant, 
and will be entitled to fifty cents per day to be paid by the 
town, on presentation of an itemized account therefor, but 
shall only receive one commitment and one discharging 
fee. The defendant may, at any time, pay or replevy the 
the judgment and costs ; and if the defendant has per- 
formed any labor, he will be entitled to a credit upon the 
judgment for the amount thereof, and only the balance 
can be required to be paid or replevied. 1 - 

This provision of the statute is intended as a protection 
against tramps and vagrants, now so^ generally infesting 
the state. 

When lands in towns are exempt from taxation for town 
purposes. — Lands not platted as city or town property, used 
solely for agricultural purposes, or wholly unimproved, ly- 
ing within the limits of a town or city, if the lands have 
not, in any way, been dedicated for corporation purposes, 
shall not be listed or taxed for general town or city pur- 
poses, to any greater percentage on the appraised value 
than lands in township outside of the corporation are 
taxed for township purposes; and the same rule must be 
observed in reference to articles of personal property used 
in farming such lands. 2 

When suburban lot may be excluded from boundary of 
town. — The board of trustees of any town may, at any 

1 Acts 1877, Special Session, 75. 2 Acts 1877, Special Session, 74. 



220 TOWNS. 



regular meeting, upon the application of the owner of any 
suburban lot or tract of land, not laid out in lots, by a two- 
thirds vote of the board, so modify the boundaries of the 
town as to exclude therefrom such lot or tract of land, upon 
such terms as the board may prescribe. The application 
ought to be made in writing. 

The statute only applies to land not laid out in lots. 1 
It is also applicable to cities as well as towns. 2 
Board of trustees may construct sewers. — The board of 
trustees of any town may construct and repair any sewer 
along any street or alley, or part of a street, block, or 
square, and such trustees are the sole judges of the neces- 
sity and utility of such sewer. 3 

Proceedings of board before constructing sewer. — When the 
board of trustees shall decide to construct any sewer, they 
must specify and determine upon their record the place of 
beginning and termination of such sewer, its route, course, 
and distance, and the depth below the grade to which it 
shall be sunk, the size or diameter of the same, and of what 
material it shall be constructed ; and they must then appoint 
three appraisers, who must be free-holders and voters of the 
town, not in any way interested in the proposed sewer, 
whose duty it will be to examine all the in-lots, out-lots, 
and parts of in-lots and out-lots, in the town that would, 
in any manner, be benefited by the construction of the 
sewer, and must assess the amount of benefits to each lot, 
or parts of lots, that will result thereto by the construction 
of such sewer, and the appraisers must make out a sched- 
ule of the lots, or parts of lots, with their appraisement 
thereto, and shall append to such schedule their affidavit 
that the said assessment is, in all respects, a true and im- 
partial assessment of the benefits resulting to each lot, and 
part of lot, in any way benefited by the said proposed 
sewer, according to the best of their judgment; and the 

. 1 See 5 Ind. 547. 2 Acts 1877, Regular Session, 22. 

3 1 R. S. 1876, 887. 



TOWNS. 221 



appraisers shall file such schedule with the clerk of the 
board of trustees of such town, who shall record the same 
in the records of the board of trustees ; and from and after 
the recording of the schedule the assessment therein made 
will be a lien on the lots and parts of lots respectively, 
against which they are made, to be in no manner diverted, 
only as hereinafter specified. 

Copy of order to be issued to appraisers. — Before the ap- 
praisers proceed to discharge their duties, the board of 
trustees shall cause to be issued to them a certified copy of 
their order, giving the commencement, termination, dis- 
tance, route, depth below the grade, and the material of 
which such sewer is to be constructed, and of their ap- 
pointment. 

Majority of appraisers competent to act. — The majority of 
the appraisers will be competent to act, and two of them 
concurring in the same proposition, such concurrence will 
be taken as the decision of the appraisers on such prop- 
osition. 

Trustees to order the sewer made. — As soon as the schedule 
of assessments made by the appraisers is returned and re- 
corded in the record of the board of trustees, such board 
shall proceed and cause the sewer to be constructed in ac- 
cordance with their previous plans and specifications, as 
near as can be done, making such alterations from the 
original plan only as the necessity of the case or the better 
construction of the work may seem to require. 

Cost to be divided among owners of lots. — As soon as the 
board of trustees ascertain the cost of the construction of 
the sewer, they shall make a division of the cost of the 
sewer among the owners of lots and parts of lots so as- 
sessed for the construction of such sewer ; and as the whole 
amount of assessment made for the construction of the 
sewer, is to the whole cost of construction of such sewer, 
so shall the lots and parts of lots owned by each individual 
be to the amount each individual shall pay upon each lot 



222 towns. 



or parts of lots owned by him, for the construction of the 
sewer ; and the said board of trustees shall cause a list of the 
owners' names of said lots or parts of lots, with the de- 
scription of the lots attached thereto, and append the 
amount in dollars and cents, so found as being the share 
properly chargeable against each lot and parts of lots 
owned by any one person, to be made out by the clerk of 
said board of trustees, and cause such list to be recorded 
in the records of the board of trustees of such town. 

Cost of sewer, how collected. — The clerk of the board of 
trustees of the town shall make out under his hand and the 
seal of the town, a certified copy of such list, showing the 
amount chargeable against each lot and parts of lots in the 
town, and deliver the same to the treasurer of the town, 
which will be authority for him to collect the amount- 
as specified in the list; and the treasurer of the town has 
all the power and authority in the collection of the same 
that the marshal of such town has in the collection of taxes 
levied by the town, and will be governed by the same rules 
and regulations, so far as applicable, that county treasurers 
are in collecting taxes; and the owners of the lots or parts 
of lots shall have sixty days from the time such list is 
placed in the hands of the treasurer, within which they 
may pay the same without cost. The treasurer, as soon as 
he receives the list from the clerk of the town, shall cause 
notice to be given thereof, either by publication of the list 
in a weekly newspaper printed in the town, or by posting 
up three copies of such list in three public places within 
the corporate limits. 

When ten per cent, penalty will be added. — At the expira- 
tion of sixty days from the time the list is placed in the 
hands of the treasurer, he will add thereto ten per cent, on 
all the amount so charged against each lot and parts of 
lots remaining unpaid at that date, which shall be collected 
as a penalty for non-payment within the sixty days, and 



towns. 223 



from that date there will be charged six per cent, interest 
on all remaining unpaid. 

Lien on lots in favor of town. — The lien created on the 
lots and parts of lots, by the assessment, shall be in favor 
of the town in which such lots are situated, and such lien 
may be enforced by an action in the name of the town, in 
any court of competent jurisdiction; and in such action 
the presumption of law will be that all the provisions of 
the statute regulating the construction of sewers have been 
complied with, and the only defense that the defendant 
will be allowed to set up in the action will be that he has 
paid the amount with which the lots or parts of lots are 
charged, and that said lot or parts of lots are not benefited 
to the amount assessed against them. 

What costs to be paid out of treasury. — The cost of ap- 
praisers and town officers, in the collection of said funds 
for building the sewer, and in making provisions for build- 
ing the same, shall be paid out of the treasury of the town 
as other fees. 

Trustees must direct work. — The sewers shall be constructed 
under the direction of the board of trustees, and to their 
satisfaction and acceptance ; and they may appoint an 
agent to oversee the same, and also employ an engineer to 
lay off and make specifications and plans of the work. 

Trustees may order part of costs paid out of treasury. — The 
board of trustees shall have power to pay a part of the 
construction of said sewer out of the general funds or 
treasury of the town, when, in their judgment, the same 
would be fair and equitable to do so; and when they 
so determine, they shall so order and specify what 
part of the construction of the sewer shall be paid out of 
the general funds of the town, before making the pro rata 
dividend upon said assessment on said lots or parts of lots 
to be benefited, and shall, in that case, take into considera- 
tion, in making the pro rata dividend, the amount to be 
paid out of the general fund of said town and making the 



224 towns. 



amount to be paid by the owners of the lots and parts of 
lots, less the amount paid out of the general funds of tho 
town. 

Time and manner of payment must be provided for. — In 
letting the work, the trustees shall specify and agree with 
the contractor, as to the time and manner of payment 
therefor. 

Ordinances in reference to sewers. — The board of trustees 
of the town shall, by an ordinance, provide for the pro- 
tection of the sewer and the manner and terms that any 
person or persons may tap, open, or intersect with said 
sewer; and no person will be allowed to tap. open or inter- 
sect, or in any manner interfere with the same, without 
first procuring a permit from the board of trustees. 

Streets, alleys, and bridges. 1 — The board of trustees of in- 
corporated towns of this state have exclusive power over 
the streets, alleys, highways, and bridges, within the cor- 
porate limits of the town, and may prescribe the height 
and manner of construction of all such bridges, and lay 
out, survey, and open new streets and alleys, and straighten, 
narrow, widen, grade, and gravel, and otherwise alter and 
improve those already laid out, or that may be hereafter 
laid out, and make repairs thereto. They may cause 
buildings, structures, and other things in the way of any 
streets or other public improvement, to be taken down, re- 
moved, and appropriated, upon the payment of damages, 
and no person residing in the town shall be compelled to 
work on any road or highway without the corporate limits 
of the town, and the board of trustees may exercise ail the 
powers of township trustees, in regard to highways, in 
their respective towns ; and the marshal, under the direc- 
tion of the board of trustees, must perform all the duties, 
and exercise all the powers of road supervisors in reference 
to a road labor tax, not to exceed two days in each year 
by each person liable to work on highways in townships, 



1 R. S. 1876,890. 



towns. 225 



and shall be governed by the same rules and regulations in 
reference to the collection and enforcement of the same ; 
and any person so liable to work, may be discharged there- 
from on the payment of one dollar and fifty cents per 
diem. 

The board of trustees may, by general ordinance, pre- 
scribe the time within which, and the manner in which, 
such labor shall be performed. 

Proceedings to open or widen streets or alleys. — When, upon 
petition signed by twelve freeholders, residents of any 
town, the board of trustees of such town may be of the 
opinion that public convenience requires the opening of a 
new street or alley, or widening or narrowing a street or 
alley already opened, the board of trustees shall appoint 
three commissioners, residents of the town, who shall be 
disinterested freeholders, to appraise and assess the dam- 
ages and benefits accruing to the owner of any land or 
lot through which any street or alley is proposed to be con- 
structed or altered, or any building or structure thereon 
appropriated, and such commissioners shall, before they 
proceed to perform their duties as appraisers, take and sub- 
scribe an oath or affirmation, faithfully to perform their 
duties as such appraisers, which shall be indorsed upon, or 
attached to, their appointment, and filed with the clerk of 
the board. Twenty days' notice shall be given to such 
commissioners by the board of trustees, through the town 
clerk, of ihe appraisement to be made, giving a complete de- 
scription of the premises to be viewed. A like notice shall 
be given by personal service, or by leaving the same with 
some person of suitable age at their reputed place of abode, 
to each of the owners or agents thereof of lots or lands 
upon or through which the public improvements, or street, 
or alley, is proposed to be made. If the owners are un- 
known or non-residents, publication of the same in one or 
more newspapers of the town, or by posting up written 
notices in six public places in the town, if there be no news- 



226 towns. 



paper published therein, for three weeks, will be deemed 
equivalent to such personal service. 

Duty of commissioners. — Such commissioners, or a ma- 
jority of them, must, at the place and time indicated in 
such notice, proceed to an examination of the real estate 
proposed to be appropriated, and shall then and there es- 
timate — first, the value of the land or other property to 
be appropriated for such improvement ; second, what real 
estate, if any, would be benefited by the improvement, 
specifying the same in parcels, with the name of the owner, 
if known, and the proportion of benefits each named re- 
ceives, and the proportion of damages each would sustain. 
They shall view the premises and receive any evidence 
touching the question before them, and may, for that pur- 
pose, administer oaths to witnesses examined in relation 
thereto. They shall report on each of the specifications 
above indicated, and, within ten days thereafter, file the 
same with the clerk of the board of trustees. 

Damages assessed must be tendered. — When such report is 
filed, as in the preceding section required, the board of 
trustees, if it accept the terms of the same, shall direct the 
treasurer of the town to tender the owner or owners of 
such real estate, or their heirs or representatives, the dam- 
ages awarded by such commissioners, deducting the amount 
of benefits assessed to such owner or owners; or if not 
found within the town, or the award is not accepted, then 
the sum shall be kept by the treasurer, as a special deposit, 
subject to the order of such owner, or his heirs or repre- 
sentatives. 

Duty of board if appropriation is made. — If the board of 
trustees, within twenty days after the filing of the report, 
by a vote of a majority of the members, determine to make 
the appropriation of real estate for such improvement, it 
shall cause an assessment list to be made by transcribing 
so much of the report, as aforesaid, as describes the parcels 
of real estate to be benefited by the opening or improve- 



towns. 227 



merit, with the name of the owner, if known, and the 
amount of benefit which each would receive, thereby di- 
recting such amount to be assessed upon such parcels of 
real estate, respectively ; which assessment shall be a lien 
on such real estate. The board of trustees may, immedi- 
ately after making such assessment, by suit in any court of 
competent jurisdiction, in the name of such corporation, 
recover, against the owner of such parcels of real estate, 
the amount of such assessment; and, upon execution 
against the property of the defendant, upon such judg- 
ment, the same shall be sold for cash, without regard to 
valuation or appraisement laws of this state. The board 
of trustees shall, within twenty days from the filing of the 
report, either accept or reject the terms of the same, and 
any owner of land, or representative thereof, aggrieved 
by such report, may appeal therefrom at any time within 
thirty days from the filing thereof, to any court having ju- 
risdiction of the same, upon filing the usual bond with the 
clerk of the town for the payment of costs. But no such 
appeal shall prevent any such town from proceeding with 
the "impropriation and improvement, lis if no ajmpeal had 
been taken. No other question shall be determined than 
the regularity of the proceeding in the suit, and the 
amount of damages sustained. 

When owner of lands is an infant. — When the owner of any 
such land or building appropriated, as aforesaid, shall bean 
infant, or of unsound mind, no proceeding shall be had af- 
fecting the rights of such persons until a guardian there- 
for shall be appointed by the court having probate juris- 
diction, and such guardian shall have given security, to the 
satisfaction of such court, for the faithful performance of 
the trust ; but any proceeding affecting such rights shall 
only be void to that extent. 

Petition for improvement of streets. — Whenever a majority 
of all the resident owners of any lots or parcels of land on 
any street or alley, not less than one square, to be estimated 



228 towns. 



by numbers, or by measuring the front lines of such lots 
or parcels of land bordering thereof shall petition the 
board of trustees of such town to grade, pave, gravel, or 
macadamize, or for either kind of said improvements, the 
board of trustees may cause the same to be done according 
to the specifications by them to be adopted, by contracts 
given to the best bidder, after advertising to receive pro- 
posals therefor. But the board of trustees may order the 
improvement of any street around the public square in the 
town without the filing of such petition, and when the county 
in which such town is situate owns or controls real estate 
bordering on such public square, it shall be subject to the 
same rules and regulations, as to payment for the improve- 
ments, as the citizens of said town are subjected. 

The question whether the petition is signed by the 
requisite number of owners of lots may be determined in 
two modes — one by ascertaining the number of the petition- 
ers simply, and the other by measuring the front lines of the 
lots or parcels of land bordering on the street to be im- 
proved. If the petition be signed by a majority of the 
resident owners of lots, or by persons owning more than 
one-half the number of front feet, it will be sufficient. 

It has been held that where a railroad company occupied 
and used one side of the street of a town for right of way, 
and owned real estate contiguous to the same side of the 
street, such real estate was liable to assessment for im- 
provement of the street. 1 

By resident owners, the statute means persons residing 
within the town. 

Sow cost of improvement shall be apportioned. — The cost 
of any such improvement shall be estimated according to 
the whole length of the street or alley, or the part thereof 
to be improved, per running foot, and the town shall bo 
liable for so much thereof only as is occupied by public 
grounds of the town bordering thereon, and the crossings 



HTInd. 25,566; 35 Ind. 532. 



towns. 229 



of the streets and alleys ; and the owners of lots or parcels 
of land bordering on such street or alley, or the part 
thereof to be improved, shall be liable for their proportion 
of the cost of such improvement, in the ratio of the first 
line of lots or parcels of land owned by them to the 
whole improved line. And when the owner of any lot or 
parcel of land shall have made any improvement in front 
of his lot or parcel of land, in accordance with the general 
plan for the improvement of such street or alley, and un- 
der the direction of the board of trustees, he shall be 
entitled to a reasonable allowance therefor upon his pro- 
portion of the cost of such improvement, which reasonable 
allowance shall be determined by the board of trustees. 
And every such owner of lot or parcel of land improved, 
shall be entitled to a credit for his road tax and road-labor 
tax that may accrue for the year in which the improve- 
ment is made. 

Estimates of cost, ivhen to be made. — When any such con- 
tract shall be made, and shall have been fulfilled or in 
progress of fulfillment, the board of trustees has power to 
cause estimates to be made, from time to time, of the 
amount of work done by contractors, and to require such 
amount to be paid to him, deducting a reasonable percent- 
age to secure the completion of the contract, until the 
whole shall be finished, and to prescribe the time in which 
the whole shall be completed ; and such estimate will be a 
lien upon the ground upon which they are assessed, in 
favor of the contractors. In case any of the owners of 
lots or parcels of land on which such assessments have 
been made, shall fail or refuse, for the space of ten days 
after the date of the estimate, to pay the amount thereof 
due by such person to the contractors, such contractors 
may immediately, by a suit in any court of competent 
jurisdiction, recover against such owners of lots or parcels 
of land, the amount of such estimate, and upon execution 
against the property of the defendant upon such judgment, 



230 TOWNS. 



the same shall be sold for cash, without regard to valuation 
or appraisement laws of this state; and in such suits on 
estimates, no question of fact shall be tried which may arise 
prior to the making of the contract for such improvement 
under the order of the board of trustees. 1 

Vacation of addition. — If any person shall lay off an ad- 
dition to any town which does not improve, and shall be 
the legal owner of all the lots contained in such addition, 
such person, or any other person who shall become the 
legal owner thereof, shall have such addition, or any part 
thereof, vacated, by applying to the board of commission- 
ers of the proper county, after notice,- as in case of the va- 
cation of streets and alleys, and upon proof of ownership 
of such lots. It is not necessary that the consent of any 
one should be procured in such case, except the person 
owning all of the lots, and his signature alone to the petition 
is sufficient. The petition need only describe the addition, 
and show that the petitioner is the owner of all the lots. 
and that the addition does not improve. 

Proceedings to change name of town. — Such board may 
change the name of any town upon a petition therefor of a 
majority of the qualified electors of such town, and in case 
any such change is made, notice thereof shall be given by 
publication three weeks successively in a newspaper of the 
county, if any, and if not, by written or printed notices 
posted up in three of the most public places of such town ; 
and a certified copy of the order of such change shall be 
recorded in the recorder's office of the county. 

The statute does not require that any reason shall be 
stated in the petition asking for the change of the name 
of a town. If a majority of the qualified voters ask that 
the name of such town be changed, it seems to be the duty 
of the county board to make the change. The name 

1 As to the averments necessary to be made in a complaint by a 
contractor to recover for a street improvement, see 47 Ind. 566. 



TOWNS. 231 



adopted must be different from the name of any other town 
in the state. 

When survey and plat of town is lost. 1 — When the original 
survey and plat of any incorporated town of this state have 
been, or may hereafter be lost or destroyed, the board of 
trustees of such town may order a survey and plat of the 
town to be made, and when such survey and plat is made 
and adopted by a majority of the board of trustees, the 
same shall be presented to the board of commissioners of 
the county in which such town is situated, with an affida- 
vit that the original survey and plat is lost, whereupon the 
board of commissioners must order the same to be recorded 
by the recorder of the county, as the survey and plat of 
such town. 

Trustees may order side- walks improved. 2 — Whenever, in 
the opinion of the board of trustees of any incorporated 
town, public convenience requires that the side-walks of any 
street in such town shall be graded, or paved, or planked, 
such board of trustees may, by an ordinance, compel the 
owners of lots adjoining such street, to grade and pave 
or plank the same ; and such ordinance shall specify the 
height of the grade, if the grade of any such side-walk is 
to be altered, the width of such pavement, and the time 
when the same shall be done. "The board of trustees may 
order the improvement made without any petition. 

When work may be let. — If the owners of such lots fail or 
refuse to grade and pave or plank such side-walk, as 
required in such ordinance, it will be the duty of the mar- 
shal of such town forthwith to let out the grading and 
paving or planking of such side-walk to the lowest bidder, 
first giving ten days' notice by posting up written notices 
thereof in three public places in such town for that length 
of time. 

How work shall be paid for. — And when such grading and 
paving or planking is completed, the marshal must report 

1 1 R. S. 1876, 894. UR.S. 1876, 895. 



232 towns. 



the same to the board of trustees, and the cost of such 
work must be audited and paid out of the treasury of such 
town, as other claims against said corporation are audited 
and paid. 

Costs may be collected from owner of lots. — Such board of 
trustees may immediately, by a suit in any court of compe- 
tent jurisdiction, in the name of such corporation, recover 
against the owner of such lot the amount of the costs of 
paving or planking and grading such sidewalk, and upon 
execution against the property of the defendant, upon such 
judgment, the same shall be sold for cash without regard 
to the valuation and appraisement laws of this state. 

The statute further provides that from the date of the 
completion of such pavement or planking or grading un- 
der contract by the marshal, the costs of such grading and 
paving or planking and the damages ' : aforesaid," shall be 
a lien on such lot, and may be collected. 

There being no provision in the act making the owners 
of lots liable for damages for failing to make the improve- 
ments, none can be recovered by the corporation, except, 
perhaps, the interest upon the amount the town may have 
paid for such improvements, from the date of payment. 

Associations to build towns may be incorporated. — By an 
act of the legislature, approved December 22, 1858, it was 
provided that where any persons had before that time as- 
sociated themselves together for the purpose of building a 
town in the state, such persons might be incorporated. 
The statute referred to is as follows : x 

Notice of the intention to organize such corporation, and 
of the time and place of holding the first meeting, signed by 
one or more persons, shall be published in some newspaper 
of the county where such town has been located, or if none, 
then in some newspaper of an adjoining county, for at least 
twenty-one days before such meeting is held. 

Proceedings at first meeting. — At such first meeting a tem- 

1 1 R. S. 1876, 896. 



towns. 233 



porary or permanent presiding officer and secretary shall 
be selected, and a written statement prepared specifying 
the object of such association, its name, and the time and 
manner of giving such notice to be signed by such presid- 
ing officer and secretary. 

Statement and notice to be filed and recorded. — Such state- 
ment, and a copy of such published notice, shall be filed in 
the office of the recorder of such county, and by him shall 
be recorded in the record of deeds, for which he shall be 
entitled to a fee of two dollars. 

First meeting to consist of twenty or more persons. — It will 
not be necessary for a majority of the members of such as- 
sociation to be present at such first meeting, but any 
twenty or more shall be sufficient to hold the meeting and 
organize the corporation. 

When incorporation is complete. — From the time of filing 
such statement as aforesaid, such association shall be deemed 
and held a body corporate and politic by the name selected } 
with full power to sue and to be sued, contract and be con- 
tracted with, have a common seal, make laws for their own 
government, and may exercise all such other powers as are 
incident to corporations, for the purpose of carrying into 
effect the object of their association. 

May acquire and sell real estate. — Such corporation may 
acquire by purchase, or otherwise, real estate, and may hold 
and convey the same, or any part thereof, in such manner 
as they may see fit ; but such lands will be subject to tax- 
ation as other real estate. 

Must keep a record. — The corporation, must keep a rec- 
ord of its proceedings, and such record, or copies thereof, 
duly attested by its clerk or secretary, may be read in evi- 
dence in all suits where the interests of such corporation 
are concerned. 

Lands held by trustees to be conveyed to the association. — 
In case any persons have associated for the purpose of build- 
ing a town, and have purchased real estate prior to the 



234 



TOWNS. 



passage of this act, and have taken deeds to one or more 
persons in trust for such association, and such association 
shall hereafter become incorporated under the provisions 
of this act, then such trustees may and shall convey to such 
corporation all such real estate, and shall assign to such 
corporation all such title bonds as may have been exe- 
cuted to them in trust for such association, and such con- 
veyance and assignment shall pass as good and perfect a 
title to such corporation for such lands, as if such associ- 
ation had been incorporated at the date of the execution 
of such deeds, and said deeds had been executed to the cor- 
poration. 

This statute is by its terms limited in its application to 
associations for building towns formed prior to its date. 

Person laying off town must record plat. — Any person who 
may lay off any town, or addition thereto, in this state, 
shall, previous to the sale of any lots in such town, cause 
to be recorded in the recorder's office of the county where- 
in the same may lie, a correct copy of the plat of said 
town, with the public grounds, streets, lanes, and alleys, 
with their respective widths properly marked, the lots reg- 
ularly numbered, and the size of the lots marked by ref- 
erence to the plat. 

Donations. — Every donation or grant to the public, or to 
any individual, religious society, corporation, or body pol- 
itic, noted as such on the plat of the town wherein such 
donation or grant may have been made, shall be considered 
a general warranty to the said donee or grantee, for the 
purposes intended by the donor or granter. 1 

Plat must be acknowledged. — The person desiring to lay 
off such lots, before offering such plat for record, shall ac- 
knowledge the same before the recorder of the proper 
county, or some justice of the peace thereof, a certificate 
of which acknowledgment must, by the officer taking the 



UGInd. 263; 48 Ind. 181. 



towns. 235 



same, be annexed to such plat or other paper, and recorded 
therewith. 

Penalty for failure to comply with the statute. — Every per- 
son who may lay off any town, or any addition to any 
town, in this state, and fail to comply with the requisitions 
of the statute, shall forfeit and pay for the use of such 
town, for every month, a sum not exceeding one hundred 
dollars, nor less than five dollars, to be recovered in the 
name of the treasurer of the county. 

When plat is imperfect, new one to be made. — Where any 
town plat heretofore or hereafter to be recorded, does not 
clearly describe the size of the lots, streets, alleys, and 
courses of the lines of said town, and where donations have 
been given or intended to be given, either to the public or 
to individuals, or to any religious society, and it has been 
neglected to insert the same on said plat, any of the pro- 
prietors of such town are required to make out such other 
descriptions as will more clearly explain the true intent; 
which shall be acknowledged, certified, and recorded, as 
required by law, as in case of an original plat. 

Vacation of streets, etc. — Whenever" any person or cor- 
poration, interested in any incorporated town, or in any 
real estate in this state, laid out in streets and lots as a 
town, may desire to vacate any lot, street, alley, common, 
public square, or part thereof, in such town or plan of town, 
such person or corporation may petition the board of county 
commissioners for the proper county, giving a distinct de- 
scription of the property to be vacated, and the names of 
the persons to be affected thereby, which petition shall 
be filed with the county auditor, thirty days previous to 
the sitting of such board, and notice of the pendency of 
said petition shall be given, for the same space of time, in 
a public newspaper printed in the county, if one be pub- 
lished therein, and by written notices thereof set up in 
three public places, near the lots, streets, alleys, common, 
or square proposed to be vacated. The statute does not 



236 towns. 



require that any reason for the vacation asked for shall be 
given. The petition will be sufficient, in point of form, if 
it clearly and accurately describe the streets, alleys, or 
property to be vacated, and the names of the persons to be 
affected by such vacation. 

If no opposition be made to such petition, the board of 
county commissioners may vacate the same with such re- 
strictions as they mny deem for the public good ; but, if 
opposition be made, such application shall be continued 
until the next term of the board, when, if the objector 
consent to such vacation, or if two-thirds of all the real 
estate holders of the town petition therefor, the board may 
grant the prayer of the petitioner. A fair construction of 
the statute seems to be, that in all cases, except the vaca- 
tion of a street or alley be prayed for, if two-thirds of all 
the real estate owners of the town sign the petition, the 
commissioners have no discretion, but must grant the 
prayer thereof; but the board may, in all cases, impose 
such restrictions as the interest of the public may re- 
quire. 

The commissioners can not, however, make an order va- 
cating a street or alley unless the consent of all the per- 
sons owning real estate immediately adjoining thereto be 
obtained in writing, which must be duty acknowledged 
before a justice of the peace, and, when so acknowledged, 
must be filed with the county board. As the statute de- 
signates a justice of the peace as the officer before whom 
the acknowledgment must be made, it would, probably, not 
be sufficient if acknowledged before any other officer. 

In whom vacated property will vest. — The part so vacated, 
if it be a lot, shall vest in him who may have the title 
thereof, according to law; and if the same be a street or 
alley, the same shall be attached to the ground bordering 
on such street or alley, and all title thereto shall vest in 
the persons owning the property on each side thereof, in 
equal proportions, according to the length or breadth of, 



towns. 237 



such ground, as the same may border on such street or al- 
ley ; and whenever a public square shall be vacated, the 
property thereof shall vest in the board of county com- 
missioners, for the use of the county. 

When towns may adopt a survey and plat. 1 — When any 
town has no sufficient survey and plat, the board of trus- 
tees may, by a resolution adopted by a vote of ayes and 
nays, if two-thirds of all the members of the board vote 
therefor, order that a survey and plat of such town shall 
be made by competent persons, to be chosen by the board, 
and when the survey and plat is made, the same may be 
adopted by resolution, by a vote of ayes and nays, if three- 
fourths of all the members of the board vote therefor, 
And when a certified copy of the resolution ordering such 
survey and adopting the same, with the vote thereon, and 
the names of the members voting for and against the same, 
signed by the president of the board of trustees and clerk, 
and attested by the seal of the town, shall have been re- 
corded, together with the survey and plat in the recorder's 
office of the county in which the town is situated, such 
survey and plat shall be deemed and taken as the survey 
and plat adopted by such town, and the original, or the 
record, or a duly certified copy thereof, will be evidence in 
all the courts. Any town may also, by resolution passed 
by a three-fourths vote, in the same manner adopt any sur- 
vey and plat which has already been made and which may 
be recorded in the same manner and with the same effect 
as in case of a survey and plat made by order of the board. 
When recorded, the original survey and plat must be de- 
posited with the town clerk for safe keeping. 

When town plats must be transferred for taxation. — All 
persons who may plat towns, or additions to any town, 
must, before the same is recorded by the recorder of deeds 
of the county, have such plat transferred for taxation by 
the county auditor, and the taxes upon the ground so 



'IB. S. 1876, 346. 



238 towns. 



platted must be- divided, and the proportion assessed equally 
against the lots, and such assessment must be furnished to 
the county treasurer. 1 

Towns may erect prisons. — The board of trustees of any 
incorporated town has power to erect a prison within the 
corporate limits, and it is lawful to imprison persons there- 
in who may be convicted of any offenses against the laws 
of such town, or for offenses against the penal laws of the 
state ; and persons charged with offenses punishable with 
imprisonment in the state prison may also be temporarily 
confined therein, until they can be conveniently removed to 
the county jail. In all cases where the county jail is con- 
venient, it may be used by the town until a town prison 
can be erected. 2 

May plant and maintain shade trees. — Trustees of towns 
may compel the owners of lots, or parts of lots, bordering 
on any street, alley, public square, or common, to plant and 
maintain shade trees along the same, under the same regu- 
lations and in the same manner that the grading and pav- 
ing of streets is enforced. 

Persons presenting petitions to the board of trustees, for 
the planting of shade trees, may designate the kind of tree 
preferred, and it will be the duty of the board to order 
that such kind of tree shall be planted ; but if no kind of 
tree is designated in the petition, or if the board of trus- 
tees order the planting of trees without any petition, the 
b6ard will determine the particular kind of tree which 
must be specified in the order. 

The board of trustees has full power to pass by-laws and 
ordinances for the protection and preservation of shade 
trees so planted, and may regulate the distance at which 
such trees shall be located, and designate the kind of boxes 
or other protection that shall be used, the costs of which 
may be assessed and collected in the same manner that the 

1 1 R. S. 1876, 311, note 1. 2 2 R. S. 1876, 294, note 3. 



towns. 239 



costs of planting and maintaining the trees is assessed and 
collected. 1 

Any person who shall remove, cut, or destroy any shade 
tree in any incorporated town or village, or remove, or in 
any way injure any box or other protection to any such 
tree, will be liable to a fine of not more than three dollars, 
upon conviction before a justice of the peace. The statute 
does not, however, prevent any such acts, if done for the 
improvement of property or streets. 2 

Garbage, slops, etc. — The board of trustees also has power 
to pass by-laws to secure the removal of slops, garbage, the 
carcasses of dead animals or other waste material from 
the corporate limits, and for such purpose may appoint or 
contract with any person to perform such service, and may 
provide, in the contract or appointment, that such person 
shall have the exclusive right to remove the same during 
his employment. 

When portions of street may be enclosed for the culture of 
trees. 3 — The board of trustees may, with the consent of 
persons owning more than one-half of the lots along any 
street, counting by lineal feet of streetxfront, authorize all 
persons owning or occupying such lots to enclose portions 
of the street in front of their lots, and to occupy the same 
for shade and ornamental purposes, but not for permanent 
structures, nor so as to reduce the street and side-walk be- 
low the width of sixty feet. 

Fire limits. 1 — Whenever two-thirds of the owners of real 
estate, within the proposed fire limits, residing within a 
town, on any street or streets, or designated part of a 
street or streets, shall petition the board of trustees for the 
passage of an ordinance establishing fire limits and pre- 
venting the erection of w T ooden buildings on such street or 
streets, or parts thereof, the board, if satisfied that the peti- 
tion contains the names of two-thirds of the owners of real 

1 1 R. S. 1876, 295, note 1. 2 1R. S. 1876, 880. 

3 1 R. S. 1876, 879. HR.S. 1876, 879. 



240 TOWNS. 



estate within such limits, and that such ordinance would 
be expedient and just, may pass the same, prohibiting the 
erection of any wooden building within the limits pre- 
scribed in the petition, but such fire limits must be con- 
fined, as near as practicable, to the business part of the town. 

Form of Ordinance establishing Fire Limits. 

In the matter of the petition 
of John Jones, and others, 
to establish fire limits. 

Now comes John Jones and others and present their 
petition, praying for the passage of an ordinance establish- 
ing fire limits within the town, and prohibiting the erection 
of wooden buildings within such limits, which petition is 
in the words following [here copy in full"]. 

And the board, upon due consideration, is satisfied that 
said petition contains the names of two-thirds of the owners 
of real estate within such proposed fire limits, and that it 
is just and expedient that an ordinance be adopted in 
accordance with the prayer of said petition. Therefore — 

Be it ordained by the board of trustees of the town 
of , that fire limits be, and the same are hereby es- 

tablished within the town of , as follows, to wit: 

[here give an accurate description of the boundary, and of 
the streets or parts of streets included'], and that the walls of 
all buildings hereafter erected by any person within said 
limits shall be built of brick or stone, and the roofs shall 
be made of tin, iron, or slate; and the erection of all 
structures and buildings of every kind within said limits, 
constructed w r holly of wood, is hereby prohibited and for- 
bidden ; and it is hereby declared to be unlawful for any 
person, in the construction of any building within the 
limits aforesaid, to use wood, except for floors, windows, 
and doors. 

If deemed necessary, the ordinance may specify more 



TOWNS. 241 



definitely the kind of material that may be used in the con- 
struction of buildings within the prescribed limits. 

Riding on side-walks prohibited} — Any person who shall 
ride or drive on the brick, stone, plank or gravel side-walk 
of any town or village, or upon any similar side-walk 
intended for foot-passengers, by the side of any public 
highway, except it be in the necessary act of crossing the 
same, will be liable to a fine of not more than three dol- 
lars, upon conviction before a justice of the peace. 

No property qualification required of officer. 2 — -N o property 
qualification is necessary to render any citizen eligible to 
hold any office in any incorporated town. 

Qualification of voters? — In all town elections no other 
qualification of voters shall be required than such as are 
made necessary under the constitution of the state, except 
that they must vote in the ward or district where they reside. 

Marshal^ how chosen. — The board of trustees, at the first 
regular meeting after their election, must elect a town 
marshal, who will hold his office for one year and until his 
successor is elected and qualified, and the board may, at 
any time, remove him for good cause shown, and fill the 
vacancy by appointment. 

Assessment of real estate in towns. — The boards of trustees 
of towns are authorized, by statute, to adopt the appraise- 
ment of real estate within the corporate limits made by 
the township assessor. It is made the duty of the county 
auditor to furnish to the town clerk, upon request therefor, 
a certified copy of such appraisement, in the manner 
listed, and to whom charged upon his duplicate, as the 
same appears thereon at the time when furnished; and 
the appraisement must be furnished on or before the first 
Monday in January following appraisement, and following 
every new appraisement of real estate for state and county 
purposes. The auditor will be allowed the same fees that 
he may be allowed by law at the time for making tax du- 

1 1. R. S. 1876, 880. HE.S. 1876, 875. 3 1 R. S. 1876, 875. 



242 towns. 



plicates, which must be paid by the town. The clerk must 
copy the list upon the tax duplicate of the town, and it 
will be the basis for the assessment of real estate in the 
town. This provision of the statute also applies to cities. 1 

Shares of bank stock, when liable to be taxed by towns? — 
The shares of capital stock owned or held by any person 
or corporation in any bank or banking association, organ- 
ized under the laws of this state or of the United States, 
is liable to taxation for municipal purposes by incor- 
porated towns in which such bank or banking association 
may have its banking-house or place of business, and such 
shares of stock must be taxed at the same rate that other 
taxable property in such town is assessed. 

Duties of county auditor. — The auditor of every county 
in which there is an incorporated town in which a bank is 
located must, on or before the first day of May in each year, 
furnish to the president of the board of trustees of such 
town, on demand being made therefor, a duly certified 
copy of the sworn statement which may have been deliv- 
ered to him by the president or cashier of such bank, show- 
ing the number of shares comprising the capital stock of 
such bank, the name and residence of each stockholder, 
and the number of shares owned by each, the par and 
cash value of each of such shares, and the par and cash 
value of the entire capital stock of such bank on the first 
day of April of the current year. 

Duty of auditor if no statement is made. — If no such 
statement has been made, he must make and certify a true 
statement of all information he may have obtained con- 
cerning the facts required to be set forth in such statement. 

Duty of officer with reference to copy or statement. — On re- 
ceiving such copy or statement, the officer must at once file 
it with the clerk of the town, and from the information 
derived therefrom the assessor or other proper officer of 
the town will proceed to enter in the assessment roll and 

1 1 R. S. 1876, 338. 2 1 R. S. 1876, 339. 



towns. 243 



tax duplicate for the current year the names of the stock- 
holders of such bank, the number of shares, and the value 
of each held or owned by each stockholder respectively, and 
shall assess thereon to the owner or holder thereof the 
proper amount of corporation taxes, at the rate that other 
taxable property may at the time be assessed for town 
purposes. If any such stockholder is assessed in such town 
with other property, the amount and value of such stock 
will be added to his assessment as j^ersonal property. 

Taxes on bank stock, hoiv paid. — Taxes on such shares of 
stock must be paid by the owners or holders thereof, as 
other taxes on personal property are paid, and all laws and 
ordinances of any town, and all penalties for non-payment 
of taxes, will apply to taxes on such bank stock. The 
officers of any bank may, however, pay such taxes for 
such stockholders, if they see proper to do so, and will 
have the right to charge the amount of such taxes to the 
stockholders, and retain the same out of any dividends 
that may be declared in their favor ; and it is the duty 
of such bank officers, when notified that such taxes are 
due and unpaid, to retain the taxes Out of any dividends 
due or to become due on the stock. 

Taxes a lien on stock. — Such taxes become a lien on the 
shares of stock on the first day of May of each year for 
which the assessment is made, and every transfer of such 
stock will be subject to the lien. 

How assessment shall be made. — In fixing the value of such 
shares of bank stock, the proper proportionate part of the 
value of any real estate held or owned by such bank in this 
state, and taxed under the laws thereof, and in which any 
part of such capital stock shall be invested, shall be deducted 
from the gross cash value of such shares, and in making 
the deduction the valuation of such real estate for taxation 
shall be the criterion. 

When a town may be united with a city. 1 — When an incor- 



1 R. S. 1876, 335. 



24:4: TOWNS. 



porated town and a city adjoin each other, they may be 
united or consolidated, or the town may be annexed to the 
city, if a majority of the qualified voters of such town and 
city are in favor of such consolidation or annexation. 

How election may be ordered. — The statute provides that 
in case it is proposed to unite a town and city, the com- 
mon council of the city and the president and trustees of 
the town must first agree upon the terms and conditions 
of such consolidation or annexation, and also upon a clay 
when an election will be held for the people of the town 
and city to vote upon the question. 

Notice of agreement and election. — Xotice of the agree- 
ment must be given at least three weeks before the time 
agreed upon for the election, by publication at least three 
times in every newspaper published in the county in which 
such town and city are situated, and by posting printed 
hand-bills also containing the agreement in three of the 
most public places in each ward in the town and city. 

Election, when and where held. — The election must be 
held on the day agreed upon, and at the usual place of 
holding city and town elections in such city and town, and 
will be governed in all respects by the laws and regula- 
tions governing other city and town elections in such town 
and city. Those who are in favor of union or annexation, 
as provided in the agreement of the common council and 
board of trustees, w 11 have on their ticket the word ••union," 
and those opposed " no union.'' or other words having the 
same meaning. 

Report of inspectors and judges, and proceedings thereon. — 
The inspectors and judges must report to the common 
council and the board of trustees the result of the election 
in such city and town respectively, and the result of the 
election in each corporation must be entered upon its rec- 
ord, and a duly certified copy of each must be furnished 
to the other corporation, and if a majority of the votes in 
the town as well as in the city are found to be in favor of 



towns. 245 



the union, the president and trustees of the town, and the 
common council of the city, shall meet at the council cham- 
ber of the city, and by resolution declare that the town is 
annexed to the city, or that the two corporations are united, 
as the case may be, according to the agreement, and the 
resolution must be entered upon the record of the city 
council, and a copy thereof recorded in the recorder's 
office of the county in which the city is situated, and a 
certified copy thereof will be evidence in all the courts. If 
a majority of the votes in either the city or town be 
against, the union or consolidation, no. further action can be 
had beyond making the proper record of the result. 

Effect of annexation. — If the agreement made be to an- 
nex the town, and the election and resolution of the trus- 
tees and common council be in favor thereof, the town will 
cease to have any corporate existence, and will thence- 
forth constitute a part of the city, and the city will con- 
tinue its existence under its corporate name, and will be 
liable for the debts, contracts, and liabilities of the town, 
and will be entitled to all of its rights, effects, money, and 
property, and may sue and be sued in relation thereto in 
the name of the city. 

Effect of consolidation. — If the agreement be for the con- 
solidation of the town and city, it must also contain a stip- 
ulation as to the name of the new corporation, and it will 
thenceforth constitute one city by the corporate name 
agreed on, and will be liable for the debts and liabilities of 
both the town and city, and will also be entitled to all the 
property and effects of both, and may sue or be sued in 
relation thereto by the name agreed upon. 

When a town may be incorporated as a city. 1 — Whenever 
one-third of the voters of a town, as nearly as the num- 
ber can be estimated, shall petition the board of trustees 
to have such town incorporated as a city, the trustees, 
by an order or resolution entered on their order-book, 



1 1 R. S. 18TG, 267. 



246 towns. 



must direct the marshal or other officer thereof to take 
the census of all persons residing within the corporate 
limits of the town at least forty days prior to the date of 
such order, and must issue to him a warrant for that pur- 
pose, and furnish him with the necessary forms to take 
such census. The statute does not provide for the manner 
of taking the census, but it must be intended that the names 
and ages of all persons residing within the limits of the 
town shall be taken. 

When the taking of the census may be dispensed with. — If 
it be made to appear to the board of trustees, by the last 
census taken by the authority of the state, or of the 
United States, or by any enumeration made by the order 
of such board of trustees, within two years of the date of 
the receipt of the petition to incorporate the town as a city, 
that the town had two thousand five hundred inhabitants, 
the board may proceed without requiring the census to be 
again taken. 

Duty of marshal — The marshal, or other officer ajDpoin ted 
to take the census, may, with the concurrence of the board 
of trustees, appoint assistants, and must, within sixty days 
from the time of receiving the warrant, make full return, 
under oath, to the board of the resident population of such 
town. 

Duty of trustees on return of warrant.- — If the return 
shows a population of two thousand persons or more, an 
election must be ordered, a day fixed therefor, and ten 
days' notice thereof given to determine, whether the town 
shall be incorporated as a city. Unless the return show a 
population of at least two thousand, no further steps can be 
taken. The board must appoint two judges and an inspec- 
tor, in each ward, who must be voters of the town, and 
they must be furnished a ballot box for each ward by the 
trustees. 

Failure of persons to serve as judge or inspector. — In case 
any judge or inspector fail to serve, the voters may choose 



towns. • 247 



persons to serve as such in their place, who will discharge 
the same duties as if appointed by the board of trustees. 
And any person failing to serve as judge or inspector, after 
his appointment and acceptance, will forfeit and become 
liable to pay a penalty of not more than forty dollars. 

Election, how conducted. — The election shall be conducted 
as other corporation elections, and the result will be deter- 
mined in the same manner as in case of the incorporation 
of a town. If a majority of the ballots are found to be 
against the incorporation of the town as a city, no further 
steps can be taken, but if found to be in favor of incorpo- 
ration, the voters will be deemed to have assented to it. 
Inspectors must make a statement showing the number of 
votes for and against incorporation, and the statement must 
be verified by the trustees, and, within five days after the 
election, must be filed with the clerk of the circuit court of 
the county. If such statement show a majority of votes 
in favor of incorporation, upon the proper filing thereof 
with such clerk, the town will thereafter be deemed an in- 
corporated city. Within five days after the filing of the 
statement, the city must be dividedMnto wards, not less 
than three in number, by the trustees, no ward containing 
less than three hundred inhabitants, and a notice of ten 
days must be given of an election to choose city officers. 
The notice must be given within five days, and specify the 
officers to be chosen, and must be published in one or more 
newspapers of such city, or in the county in which it is 
located, and must also be posted in three public places in 
each ward. The day on which the election will be held, 
and the places in each ward where a poll will be opened, 
must also be set forth in the notice. 



248 • TOWNSHIPS. 



CHAPTER XVI. 

TOWNSHIPS. 

Sow township may be established} — The board of county 
commissioners in each county must lay off and divide the 
same into as many townships as the convenience of the 
citizens may require, and must make an accurate descrip- 
tion of the boundaries of each township, and of all changes 
made, and of new townships formed, upon their record. 

The commissioners may also, at any time, make such 
changes in the number, names, and boundaries of the 
townships as may be deemed proper. 

It is the duty of the county board, in laying off civil town- 
ships, to conform the boundaries to those of Congressional 
townships, so far as it is practicable to do so. 2 The bound- 
aries of the civil township will remain as now until changed 
by order of the proper board. 

Proceedings to change boundaries. — The statute is silent as 
to the mode of proceeding to change a township boundary. 
There is no doubt, however, that the commissioners may, 
upon their own motion, without any petition, make such 
changes as, in their judgment, the interests of the inhab- 
itants to be affected require. 

Persons desiring such change may also petition the 
county board therefor, and the prayer of the petition may 
be granted if the commissioners consider it expedient to 
do so, without any notice. It is suggested, however, that 
unless it is clear that the interests of persons to be af- 
fected thereby will be promoted, no change ought to be 
made without notice of the pendency of such a proceed- 
ing, and an opportunity given to persons interested to re- 
monstrate, who may desire to do so. The board may de- 

HR.S. 1876, 899. 2 1 R. S. 1876, 811. 



TOWNSHIPS. 249 



termine, in each case, what notice will be required, if any, 
and how and to whom the notice must be given. It would 
seem thut, in almost any case that can arise, the trustees 
of the townships, the boundaries of which are to be 
changed, should be informed before any action is had. 

Township is a body corporate. — Every township that is 
now, or may hereafter be, organized in any county in the 
state is, by statute, made a body corporate and politic by 
by the name of township, of county, accord- 

ing to the name of the township, and of the county in 
which it may be organized, and by such name may make 
contracts and sue and be sued in any court having compe- 
tent jurisdiction. 1 

Summons against township, how served. — In all suits 
against a township, the statute requires that process shall 
be served at least ten days before the return day of such 
process, that is, ten days before the day of the trial of the 
cause in which the summons was issued ; and it must be 
served by delivering a duly certified copy thereof to the 
trustee of the township. If the copy be left at the resi- 
dence of the trustee, or if the summons be read to him 
only, the service will not be sufficient. 

Township may appear by attorney. — The statute provides 
that the township trustee may appoint an attorney to de- 
fend in any proceeding or suit in which the township is in- 
terested. 

Strictly construed, the statute would seem to limit the 
authority of the trustee to appoint an attorney only 
to cases where it is necessary to make defense in case 
a suit is brought against the township, but the obvious in- 
tention of the legislature was to confer upon the trustee 
the power to employ counsel to prosecute actions in favor 
of the township as well as to defend its interests when 
sued. 



38 Ind. 41. 



250 



TOWNSHIPS. 



When townships may take stock in railroad companies. 1 — 
Whenever twenty-five freeholders of any township shall 
present a petition to the county board, asking that such 
township make an appropriation of money to aid any rail- 
road company named in such petition, and then duly or- 
ganized under the laws of the state, in constructing a rail- 
road in or through the township, by taking stock in or do- 
nating money to such company, to an amount which must 
be specified in the petition, but not exceeding two per 
centum on the amount of taxable property of such town- 
ship on the tax duplicate of the county, for the preceding 
year, it will be the duty of the board of commissioners, upon 
being satisfied that the petition has been signed by the 
requisite number of freeholders of the township, to take 
the same under advisement and to order the opening of the 
polls at the place or places of voting in the township so 
petitioning, on a day not less than thirty nor more than 
sixty days thereafter, and that on such day the votes of all 
the legal voters of the townshij) be taken upon the ques- 
tion of making the appropriation. 

The election will be conducted according to the rules 
governing other elections, so far as may be. 2 

When and how tax may be levied. — If a majority of the 
votes be in favor of the appropriation, the county commis- 
sioners, at their ensuing June session, must grant the 
prayer of the petition and levy a tax of at least one-half 
of the amount specified in the petition, but not exceeding 
one per centum upon the real and personal property in the 
township, liable to taxation for state and county purposes, 
which will be collected as other taxes. The residue of the 
taxes, if any, must be levied the succeeding year. 

Tax must not exceed two per cent, in two years. — No town- 
ship can raise by taxation for such purpose more than two 
per centum upon the taxables of the township, as they ap- 

HRS. 1876, 736. 2 49 Ind. 1 ; 39 Ind. 539; 36 Ind. 320. 



TOWNSHIPS. 251 



pear on the tax duplicate of the county in one period of 
two years. 

When railroad company may receive the tax collected. — 
The railroad company will not be entitled to receive to ex- 
ceed fifty per cent, of the money voted to be appropriated 
to such company, until the iron is laid upon the road, and 
a train of cars shall have passed over the entire length of 
the road in such township. 

By an act passed at the regular session of the legislature 
of 1877, it is provided that any railroad company organ- 
ized at the time of the passage of the act and to which any 
township had or mny hereafter make an appropriation of 
money to aid such company in the construction of a rail- 
road through such township by taking stock in or donat- 
ing money, shall have five years from the passage of the 
act to complete the railroad for use, and, when completed, 
the company will be entitled to the appropriation ; pro- 
vided the company commenced, or shall commence, work 
upon its road within two years from the date of levying 
the tax. 1 

Persons paying tax to have special receipts. — Any person 
paying taxes assessed in aid of any railroad is entitled to 
a receipt from the county treasurer, stating the amount of 
tax paid, the date of payment, and the name of the rail- 
road in aid of which the tax was paid. 

Receipts assignable in writing. — Such receipts may be as- 
signed in writing, and the holder thereof may present and 
surrender such receipts to the proper railroad company at 
any time within four years after the tax has been paid, in 
sums equal in amount to any number of shares in the cap- 
ital stock of the company, and the company will be required 
to issue to such holder a certificate of paid-up capital stock 
to the amount of such receipts j but the company will not 
be required to issue certificates of stock to individuals to an 
amount greater than the money received from the town- 



1 Acts 1877, 111. 



252 TOWNSHIPS. 



ship or county, as the case may be, and the expenses of 
the election, which must be paid by the railroad company, 
if the vote was favorable to the appropriation. 

Duty of auditor where stock is not applied for. — After the 
time for the presentation and surrender of receipts by in- 
dividuals has expired, the county auditor must examine 
the books of the railroad company, and ascertain the 
amount of stock that has been paid for by such taxes 
which has not been applied for by individuals within the 
time limited for that purpose, and shall require the com- 
pany to issue to the several civil townships of his county, 
certificates of stock in proportion, as nearly as may be, to 
the number of children in such townships between the 
ages of six and twenty-one years, according to the last 
enumeration for school purposes; which stock, with all 
dividends thereon, shall be apart of the school funds of 
such townships. But such stock must only be distributed 
among such townships as have paid taxes. 

When township trustees may vote stock. — Township trus- 
tees have the right to vote stock held by their respective 
townships at all stockholders' meetings. 



TOWNSHIP TRUSTEES. 253 



CHAPTER XVII. 

TOWNSHIP TRUSTEES. 1 

The qualified voters in each township shall, on the first 
Monday of April of each alternate year, commencing with 
the year 1878, elect a township trustee, who shall hold his 
office for two years, and until his successor is elected and 
qualified. 

He must take an oath or affirmation, before some officer 
authorized to administer the same, to faithfull} T discharge 
his duties, and must execute a bond, conditioned as in or- 
dinary official bonds, with at least two sufficient freehold- 
ers as his sureties, which bond he must present to the 
county auditor for his approval, and with whom the same 
must be filed. No person can hold the office of township 
trustee for more than four years in any period of six 
years. 2 

Vacancy in office of trustee. — In case of a vacancy in the 
office of township trustee, by resignation or otherwise, the 
board of county commissioners, if in session, will fill the 
vacancy by appointment ; if not in session, the county 
auditor must make the appointment, and the person so 
appointed will hold the office until his successor is elected 
and qualified, and he must file a like bond and take the 
same oath required of persons elected to the office. 

'Resignation of township trustee. — Township trustees wish- 
ing to resign their offices will tender their resignations to 
the board of county commissioners, if in session, and if 
not in session, to the county auditor. 

Duties of trustees. — First. He must keep a true record of 
all his official proceedings in a book which he must pro- 
vide for that purpose. 

1 1 R. S. 1876, 900. 2 Acts 1877, Special Session, 79. 



254 TOWNSHIP TRUSTEES. 

Second. He must receive all money belonging to the 
township, and pay the same out according to law, as 
right and justice shall require. 

Third. He must divide his township into convenient 
highway districts, and make such alterations in the same 
as may be necessary. 

Fourth. He must fill all vacancies that occur in the office 
of supervision of highways in his township. 

Fifth. He must make a proper application of all money 
belonging to his township for road, school, or other pur- 
poses, and perform all the duties formerly required of the 
board of township trustees, clerk, and treasurer, under the 
road supervisor and school acts, except where any of such 
duties are by statute conferred on other officers. 

Sixth. He must superintend all the interests of his town- 
ship, and take care of and manage all the property thereto 
belonging. 

Seventh. He must make a record accurately defining the 
boundaries and number of each road district in his town- 
ship, and all alterations made in the boundaries of a dis- 
trict must be accurately described in the record. 

Eighth. He may administer all other oaths necessary in 
the discharge of the duties of his office. 

Ninth. He shall be inspector of elections, overseer of the 
poor, and fence viewer, and shall superintend all the pecu- 
niary concerns of his township, and shall annually at the 
June session of the county board, with the advice and 
concurrence of the county commissioners, levy a tax on 
the property of his township for township, road, and other 
purposes, and must report such levy to the county aud- 
itor, who will place the same on the tax duplicate for col- 
lection as other taxes. 

If the trustee and the county board can not agree as to 
the amount of the tax to be levied, the board will make 
the levy without regard to the views of the trustee. 

Tenth. He must examine and settle all accounts and de- 



TOWNSHIP TRUSTEES. 255 

mands chargeable against his township, and must keep an 
accurate account current w^th the township, which shall be 
so arranged and kept as to show the amount received and 
paid out on account of separate and distinct funds, and to 
whom paid, as well as the whole receipts and expenditures 
by one general account, and he must file all accounts as 
vouchers, and report the same under oath or affirmation to 
the county board in his annual settlement. 

Must settle with. the road supervisors and report to commis- 
missioners. — He must also on the last Saturday of February 
of each year settle with and audit the accounts of road su- 
pervisors in his township, and within five days thereafter 
make a complete report to the county board, showing the 
receipts and expenditures of his township during the pre- 
ceding year, which report must exhibit the amount re- 
ceived and expended on account of township, road, school, 
and other purposes, as well as the proper balance remain- 
ing on hand, and within ten days thereafter he must re- 
cord the report in the township record, and post a certified 
copy of the same at the place or places of holding elections 
in his township. 1 

When trustee must receive township money from county 
treasurer. — Immediately after the settlement by the county 
treasurer with the county auditor on the third Monday of 
March of each year, the trustee shall receive from such 
treasurer, on the warrant of the auditor, all money in the 
county treasury belonging to his township, for which he 
must give his receipt. 

Trustee must make an itemized statement of charges. — Trus- 
tees at the time of making their annual settlement with 
the county board in February must file with such board 
an itemized statement of their charges and services as trus- 
tees, under oath, and the commissioners must allow them 

1 The statement of the trustee in his report of the amount of money 
in his hands is conclusive against him and his sureties on his official 
bond. 29 Tnd. 530; 44 Ind. 287. 



256 TOWNSHIP TRUSTEES. 

two dollars and fifty cents per pay for all the time neces- 
sarily employed by them in the discharge of their duties as 
such trustee*, which must be paid out of the funds of their 
townships respectively. 

Township trustees' record to be open. — The record and 
other books of township trustees must be at all times open 
to public inspection. 

Penalty for failing to discharge duty. — Any person elected 
or appointed to the office of trustee, who shall, after having 
accepted the office, foil to perform any duty required of 
him by the act providing for the more uniform mode of 
doing business, approved February 18, 1859, will forfeit 
and become liable to pay to the township in which he may 
have been elected or appointed any sum not exceeding one 
hundred dollars, which may be recovered in an action in 
the name of such township before any court having com- 
petent jurisdiction. 

Township trustees must give notice of day they will attend 
to township business} — Township trustees are required by 
statute to designate such number of days of each week or 
month in which they will attend to township business, and 
to give notice of the particular days upon which and the 
place where such business will be attended to. The notice 
may be given in a newspaper published in the township 
or county, if there be one ; if not, by posting written or 
printed notices in such number of public places as will gen- 
erally inform the inhabitants of the township. All con- 
tracts must be made and all claims audited and paid only 
on such designated days. 

Wlien and how trustee may contract debts. 1 — When in the 
opinion of the township trustee it becomes necessary to in- 
cur in behalf of the township any debt or debts the agg e- 
gate amount of which shall be in excess of the fund on 
hand to which such debt or debts are chargeable and of the 
fund to be derived from the tax assessed against his town- 



- 1 1 R. S. 1876, 903. 



TOWNSHIP TRUSTEES. 257 

ship for the year in which such debt is to be incurred, he must 
first procure an order from the board of county commis- 
sioners of his county authorizing him to contract such in- 
debtedness. 

Petition must be filed. — Before the county board will be 
authorized to grant such order, the trustee must file a petition 
in the auditor's office of his county, in which he must set forth 
the object for which such debt or debts are to be incurred, 
and the approximate amount required, and must also make 
an affidavit that he has caused notice to be given of the pen- 
dency of such petition by posting notices in not less than 
five public places in his township, at least twenty days 
prior to the first day of the session of the board. 

The form of the petition may be as follows : 

Form or Petition by Township Trustee for an Order 
to Contract Debt. 

To the Honorable Board of County Commissioners of the 
County of 
Your petitioner, , trustee of township, of 
county, would respectfully show that x it has become neces- 
sary for him, as such trustee, to contract a debt on behalf 
of such township for the purpose of \liere state the object for 
which such debt is to be incurred] ; that the approximate 
amount of money required for such purpose, as nearly as 
he has been able to ascertain the same, is \_here state the 
amount]. Your petitioner further shows that the amount 
of said debt is in excess of the fund now on hand, to which 
such debt is chargeable, and is in excess of the fund which 
will be derived from the tax assessed against said township 
for the year \_state the year in which the debt is to be incurred]. 
Wherefore he prays for an order by your board authorizing 
him to contract such indebtedness on behalf of said town- 
ship. A B . 

Trustee, etc. 



258 TOWNSHIP TRUSTEES. 



Form of Notice of Filing Petition. 

Notice is hereby given that the undersigned trustee of 
townshij:). of county, will present to the board 

of county commissioners of county, at this December 

session, 1877, his petition praying for an order of said 
board authorizing him as such trustee to contract an in- 
debtedness on behalf of said township for the purpose of 
[here state the object for which the indebtedness is to be created], 
to the amount of about [here state the amount"]. Said peti- 
tion will be presented to said board on the first day of said 
December session of the board, to be held at the court- 
house in said county, and commencing on the third day of 
December, 1877. 

A -B , 

Trustee, etc. 

Form of Affidavit of Posting Notices. 

State of Indiana, County of 

A B , trustee of township, of county, 

being duly sworn, on oath states that he posted copies of 
the above notice in five public places in said township 
twenty days before the third day of December, 1877. 

A B , 

Trustee, etc. 
Subscribed and sworn to, etc. 

Duty of county commissioners. — The county board may ex- 
ercise its discretion in granting the prayer of the petition, 
and is not bound to make the order as a matter of course. 
It is also the duty of the commissioners to permit remon- 
strances to be filed if any of the tax-payers of the township 
desire to make objection to the granting of the prayer of 
the petition. 

Power of trustees to make contracts. — Township trustees 
have no power to make contracts, except for purposes con- 



TOWNSHIP TRUSTEES. 259 

templated by the statute. And in a case where a township 
trustee illegally contracted for the building of a bridge un- 
der a mistake of law, in which the other contracting party 
equally participated, both parties having equal means of 
information, and neither party looking to any personal lia- 
bility, it was held that neither the township nor the trustees 
personally would be liable. 1 

In certain cases a township trustee may take a prom- 
issory note to secure a debt due his township. Where a 
trustee had obtained a judgment, and an execution had 
been issued thereon, and property levied upon, took the 
promissory note of the judgment defendants, with others 
as their sureties, conditioned that the sale of the property 
levied on should be postponed until the maturity of the 
note, it was held that the note was valid, and that its pay- 
ment would satisfy the judgment. 2 

Trustee can not loan money of his township. — A township 
trustee has no authority to loan the money of Kis town- 
ship, and where a trustee loans money of his township 
in such a manner as to make the loan x a conversion of the 
money to his own use, and takes a note therefor payable 
to himself as trustee, he will be liable on his bond for the 
money, and the township will have no right of action on 
the note. 3 

The trustee loaning the money could, however, maintain 
an action therefor upon the note in his own name. 

A township trustee is bound to account for and pay over 
all money of his township coming to his hands, although 
the same maybe loaned out, or if the same is stolen or 
burned without his fault. 4 

Duties of trustees as to location of school houses. — A trus- 
tee can not be compelled to locate and build a school house 
on land that does not belong to his township, even if the 
county superintendent, on appeal from the decision of the 

1 18 Ind. 396. 2 16 Ind. 254. 3 19 Ind. 204. 4 36 Ind. 346. 



260 TOWNSHIP TRUSTEES. 

trustee, has rendered a judgment that he should erect a 
school house on such land. 

Nor can he be so compelled if a petition by certain in- 
habitants of the proper school district be presented to him 
praying for such location and building, and stating that the 
land will be deeded to the township on the acceptance of 
the location, and upon the order of the trustee to build. 

A trustee has also the power to change the location of a 
school house, even after it has been established by the 
county superintendent on an appeal to him from the de- 
cision of the trustee. 1 

Trustee must perform the duties required of him by the 
supervisors' act. — Township trustees must see that super- 
visors are provided in each road district of their township. 
In case of a vacancy from any cause they must fill the va- 
cancy by appointment. 

The certificate of appointment may be as follows : 

Form of Appointment of Supervisor. 

State of Indiana, County of Switzerland, ss. 

Whereas, it has been made known to me that a vacancy 
exists in the office of supervisor of highways in road dis- 
trict No. 5, in Cotton township in said county, by reason of 
the failure of the voters of said road district to elect a super- 
visor at the last township election [or whatever the cause of 
the vacancy may be], therefore it is hereby certified that I 
have appointed William Dunning to fill the vacancy in said 
office thereby created, and to serve as supervisor of high- 
ways in said road district until the next township election. 

Witness my hand the 20th day of September, 1877. 

James McHenry, 

Trustee, etc. 

Duty of trustee ichen person elected supervisor refuses to 
serve. — Upon the failure of any person elected as supervisor 

1 44Ind. 323. 



TOWNSHIP TRUSTEES. 261 



to qualify and act as such, if he he a person who is by 
statute required to serve, the trustee must within twenty 
days after such refusal bring an action against him for 
six dollars, unless the money be paid into the township 
treasury without suit. 

The complaint may be as follows : 

Form of Complaint against a Person elected as Super- 
visor failing to Serve. 

Clay Township, of Dear-^| 

born County, I Before Thomas Hess, Justice of 

/ v. ( the Peace. 

John Williams. J 

Clay township, of Dearborn county, complains of John 
Williams, and says, that on the fifth day of April, 1878, the 
defendant was duly elected supervisor of highways in road 
district number two, in said township, and that on said day 
the defendant was a resident freeholder of said road dis- 
trict, and over the age of twenty-one years, and under the 
age of fifty years, and had not served as supervisor ot 
highways for six years next preceding the day of said elec- 
tion, and was eligible to the said office, and liable to serve 
as such supervisor, and that although said defendant had 
due notice of his said election has wholly failed to accept 
said office, and has also failed to pay into the treasury 
of said township the sum of six dollars, as commutation 
therefor. W T herefore, the plaintiff demands judgment for 
six dollars for the use of said road district. 

Clay Township, of Dearborn County, 

By Hamilton Conawcnj, 

Trustee. 



Certificate of exemption from road labor. — Tc 
es must give to persons belonging to an; 



-Township trus- 
tees must give to persons belonging to any legally or- 
ganized fire company, and to persons unable, from bodily 
infirmity, to perform ordinary labor, and who are too poor 



262 TOWNSHIP TRUSTEES. 

to pay the commutation, a certificate of the facts to be pre- 
sented to the supervisor. 

The certificate may be as follows : 

Form op Certificate for Exemption from Koad Labor. 

State of Indiana, Dearborn County, ss. 

I, George W. .Roberts, trustee of Manchester township, 
of said county, hereby certify that Jonas Brown is unable, 
from bodily infirmities, to perform ordinary labor, and that 
he is too poor to pay the commutation to exempt him from, 
highway labor [or that he is an acting member of a legally 
organized fire company in .] 

George W. Eoberts, 

Trustee. 

The trustee does not determine the question whether the 
person is entitled to exemption, but only certifies the facts. 
The supervisor, if he believes that the certificate is untrue, 
or that it was procured by fraud, may disregard it. But the 
certificate will be presumed to be true until the contrary is 
shown. 1 

Duty of trustees in letting contracts to keep roads in re- 
pair. — When township trustees determine to keep the 
highways and bridges in repair by contract, notice must 
be given that proposals will be received for the work, and 
the contracts must be awarded to the lowest responsible 
bidders. Notices, which may be either written or printed, 
must be posted in three of the most public places in the 
township. No particular form of notice is required. It 
will be sufficient to plainly state the object of the notice, 
and the time and place where such proposals will be re- 
ceived. The statute seems to contemplate that bids shall 
be received for each road district separately, and that the 
trustee may let such contracts as to a part or all of the 
road districts, as he may deem proper. The posting of the 

l 23Ind. 479. 



TOWNSHIP TRUSTEES. 263 

notice should not be confined to the districts in which the 
contracts are proposed to be made, but should be posted 
in the most public places in the township. 

Duty of trustee where supervisor fails to report. — If any 
supervisor fail to make the report required of him by law, 
on the last Saturday of September of each year, and to 
pay to the trustee of his township, on that day, any unex- 
pended funds that may be in his hands, it will be the duty 
of such trustee to bring a suit before any justice of the 
peace of the township against the supervisor to recover 
the money. The complaint may be as follows : 

Form of Complaint by Trustee against a Supervisor 
for failing to eeport and pay over money. 

Cotton Township of") 

Switzerland County ! Before Hervey Littlefield, Justice of 
vs. | the Peace. 

Andrew Hardy. J 

Cotton township of Switzerland county complains of 
Andrew Hardy, and says that the defendant was duly 
elected supervisor of highways in road district number five 
in said township, at the election in said township, held on 
the fifth day of April, 1876, and that he accepted said office 
and has ever since acted as such supervisor, and that as 
such supervisor he failed and neglected, on the last Satur- 
day of September, 1877, to make to the trustee of said 
township a full and succinct report, under oath, of his pro- 
ceedings, showing the names of all persons liable to, or 
who have performed labor on the roads in said district, the 
amount of commutation money received by him, and who 
the same was received from, any and all other sources what- 
ever, and how the same has been expended, and has wholly 
failed and neglected, and still so fails and neglects to make 
any report whatever, as such supervisor to said trustee ; 
and that although said defendant had in his hands on said 
last Saturday in September, as such supervisor, the sum of 



264 TOWNSHIP TRUSTEES. 

twenty-five dollars, collected by him as commutation mo- 
ney from persons liable to perform highway labor in said 
district (or if from any other source the fact should be stated) 
and which sum on said day remained unexpended, for the 
benefit of the highways in said district, and said defendant 
still unlawfully withholds the same; wherefore plaintiff 
demands judgment for said sum of twenty-five dollars, and 
interest thereon from the last Saturday in September afore- 
said. Cotton Township of Switzerland County, 

By James McHenry, 

Trustee. 



SCHOOL LAW FORMS. 

The following forms, prepared and approved by the state 
superintendent of public instruction, are inserted here for 
the benefit of township trustees and other officers con- 
cerned in the administration of the school law. To insure 
uniformity in the administration of the law governing com- 
mon schools, these forms should be used in all cases. 

Notice of School Meeting. 

(School Law, Section 26.) 

Notice is hereby given that a meeting of the legal voters 
of school district No. , township, county, in 

the State of Indiana, will be held at the school house of 
said district, on , the day of , 187 , at 

o'clock , for the purpose of \here state object of the meet- 

ing^., and for the transaction of such other business as may 
legail}' come before it. 



187 . Director. 

Where five voters join in calling a school meeting, as the 
statute provides they may do, the above form maybe used, 
but should be signed by the person calling the meeting. 



TOWNSHIP TRUSTEES. 265 



Eecord of Proceedings of School Meetings. 

(Schoel Law, Section 20.) 

Pursuant to notice, the legal voters of school district No. 

, township, county, in the State of Indiana 

met at the school house in said district, on the day of 

, 187 , at o'clock , the director presiding. 

On motion of the meeting fixed the day of 

, 187 , as the time when the school shall commence. 

On motion of , it was 

Resolved, That this meeting hereby petition the trustee 
of the township to furnish a full set of seats and desks for 
the school house, the same to cost about f>5 each, or in the 
aggregate, $200. 

On motion of meeting adjourned. 



Director. 

A copy of the proceedings of the school meeting should 
be certified by the director and delivered to the trustee. 
The certificate may be as follows : 

I, , director of school district No. , town- 

ship, county, in the State of Indiana, hereby certify 

that the foregoing is a full and correct copy of the record 
of the proceedings of a school meeting held in said dis- 
trict on the day of 187 , pursuant to notice le- 
gally given. 



Director. 

A copy thus certified and filed with the trustee will be 
sufficient notice to him of the action of the school meeting. 

The statute provides for an appeal from the decision of 
a school director, excluding a pupil from school, to the 
township trustee, but is silent as to the mode of taking the 
appeal. 



266 TOWNSHIP TRUSTEES. 

The ruling of the department of public instruction is 
that the appeal may be taken by the parent or guardian 
who may feel aggrieved by such decision, by filing with 
the township trustee a statement in writing that his child, 
or ward, has been excluded from school without good 
cause, and praying that the trustee will hear and deter- 
mine the matter according to the following form : 

Form of Appeal from Decision of Director to Trustee. 

(School Law, Section 32.) 

To , Trustee of Township, of County, in 

the State of Indiana. 

James Smith would respectfully show that his son, John 
Smith, a pupil in school No. 1, in said township, was, on 
or about the day of , 1877, excluded from said 

school by , the director thereof, for the term of thirty 

days, without sufficient cause ; wherefore he prays that an 
appeal from the decision of said director be granted him, 
and that the case may be heard and determined by the 
trustee. 

James Smith. 

October 10, 1877. 

Upon the filing with the trustee of the prayer for the 
appeal, it is his duty to forthwith notify the director of the 
fact that an appeal has been taken from his decision, and 
of the time and place where the same will be heard and 
determined, as follows : 

Notice of Appeal from Director. 

(School Law, Section 32.) 

To , Director of School No. , Township, 

County, in the State of Indiana. 

On the day of , 18 , James Smith filed with 

me his complaint, alleging that John Smith has been by 
you, without good cause, excluded from said school for the 



TOWNSHIP TRUSTEES. 267 

period of thirty days, and praying an appeal to me as 
trustee of said township. 

You are hereby requested to notify all parties interested 
to attend at on the day of ,18 , at 

which time and place said appeal will be heard and de- 
termined. 



Trustee. 

The law makes no provision for procuring the attendance 
of witnesses. The director should, however, notify the 
teacher of the school, and such witnesses as the teacher 
may designate, and, also such witnesses as he may himself 
know have knowledge of important facts. The party 
prosecuting the appeal also has the right to produce such 
witnesses as he may desire. The trustee may examine the 
.witnesses under oath, and has authority, by virtue of his 
office, to administer such oaths. The trustee's record may 
be as follows : 

Trustee's Eecord op Appeal from School Director. 

On the day of 18 , James Smith filed with 

me his complaint, alleging that his son, John Smith, had 
been excluded from school No. , by director of 

said school, without sufficient cause, and praying an appeal 
from said decision of the director. 

Said appeal was set for hearing on the day of , 

18 , at o'clock, , of which due notice was given to 
the director of said school, who was requested to attend 
the trial of said appeal, and bring with him such persons as 
know the truth of the matter in controversy, so that the 
trustee might be fully informed in the premises. 

On the day of , came the appellant, and the 

teacher and director of said school, and the trustee being 
fully informed in the premises, by the allegations of the par- 
ties and the examinations of witnesses, affirmed (or re- 



268 TOWNSHIP TRUSTEES. 



versed) the decision of the director, excluding said John 
Smith from school. 



Trustee. 

In fixing the time for hearing the appeal, the trustee should 
take into consideration the circumstances of the case ; and 
should set as early a day as possible, giving sufficient time 
for the parties to be ready, and while it is necessarily a sum- 
mary proceeding, there seems to be no good reason why 
both sides should not be fully heard. There is no appeal 
from the decision of the trustee. 

Trustees may receive and consider petitions and remon- 
strances filed with them in relation to the location and 
erection of school houses. In such case they may enter the 
proceedings upon their record as follows : 

Trustee's Kecord op Proceedings on a Petition for 
Erection op a School House. 

On the day of , 18 , and others filed 

with me their petition praying the location of a school and 
erection of a school house at 

ISTot being fully advised in the premises, the 
day of , 18 , was set for hearing said petition, and 

the parties notified accordingly. 

On the day last mentioned came the petitioners, and 
and others remonstrating against granting the prayer of 
said petition. 

The petitioners and remonstrants being fully heard, the 
prayer of said petitioners is granted. 

And and others, remonstrants, pray an appeal to 

the county superintendent which is granted, 



Trustee. 

If an appeal be taken from his decision, the trustee should 
at once make out a complete copy of his record in the case, 



TOWNSHIP TRUSTEES. 



269 



and certify it to be true and complete, and file such copy 
with all the papers relating to the matter, whatever they 
may be, with the county superintendent, who must, with- 
out unnecessary delay, determine the appeal. 

Eeport of Trustee to Superintendent, of Children 
Enumerated and Transferred. 

(School Law, Section 16.) 



,1877. 

Eeport of the trustee of township (town or city), 

county, to the county superintendent, showing the 
names of persons transferred to said , with the num- 

ber of children enumerated for school purposes in charge 
of each of such persons, as required by the latter clause of 
the sixteenth section of the school law. 





Names of Per- 
sons transferred 


Township, Town 
or City from 
which trans- 
ferred. 


No. of Children in charge of Person 
transferred. 




White 
Males. 


White 
Females. 


Colored 
Males. 


Colored 
Females. 


Total. 



















I, , school trustee of the township (town or city) 

of , do solemnly swear that the foregoing is a correct 

list of all persons transferred to said , and that it 

shows correctly the number of children in charge of the 
persons so transferred, and that all the matters therein 
contained are correct. 



Trustee. 



270 



TOWNSHIP TRUSTEES. 



Trustee's Eeport of Enumeration oe Part of a Con- 
gressional Township, divided by a County Line, to 
the County Superintendent of the County in which 
the Fund of such Township is managed. 

(School Law, Section 19.) 



■18 



To the county superintendent of county : 

I hereby submit the following report of the enumeration 
of children for school purposes in that part of congres- 
sional township jSTo. , Eange , which forms part of 
township, in county, and whose funds is man- 

aged in your county : 





Names of Parents, Guardians, 
and Heads of Families. 


No. of Children in charge of. 




White 
Males. 


White 
Females. 


Colored 
Males. 


Colored 
Females. 


Total. 

















I, , school trustee of the of , of 

county, Indiana, do solemnly swear that the foregoing re- 
port is, in all respects, true and accurate as I verily believe. 



Subscribed and sworn to before me this 
18 . 



Trustee. 
day of 



TOWNSHIP TRUSTEES. 



271 



Form of Trustee's Account of School Eevenue. 

(School Law, Section 7.) 

Account of Tuition Revenue. 



RECEIPTS. 


EXPENDITURES. 


Date of 
Receipt. 


Source whence re- 
ceived. 


Amount 


Date of 
expend- 
iture. 


To whom and for what 
paid. 


O O 

> 


Amount 


June 20. 
Nov. 25. 


June apportionment 
Local tuition tax.... 
Nov. apportionment 


$500 00 

300 00 

100 00 

25 00 


Oct. 25. 
Oct. 30. 
Nov. 3. 


John Smith, for teach- 
ing in school No 

William Jones, teach- 
ing School No 


1 

2 
3 


$100 00 
100 00 






James Wilson, teach- 


90 00 







In reference to the above form of account, the superin- 
tendent of public instruction says : 

" If this account is carefully kept according to the above 
form, there can never be any difficulty in determining the 
amount on hand at any given date, or the amount paid out 
between any two dates, included in the time the account 
runs. In short, trustees can never have any difficulty in 
making their September reports of revenues received and 
expended, whether the accounts have been kept by them- 
selves or others. Thus one great source of error will be 
obviated. An account exactly similar in form must be 
kept in the special school revenue. 

" The above form is intended to be kept on two opposite 
pages." 

Notice of Transfers for School Purposes. 

(School Law Section 16.) 

, 18 . 

To the School Trustee of , in the County of , 

and State of Indiana. 

You are hereby notified that the persons named in the 



272 



TOWNSHIP TRUSTEES. 



annexed, list have been by me transferred to your , 

for school purposes under the provisions of section 16 of 
the school law ; and that the number of children in charge 
of each, subject to the enumeration for school purposes, 
distinguishing between male and female, is correctly shown 
in the ruled columns to the right, opposite the name of the 
person transferred. 



Names of Persons 
Transferred. 



No. of Children in Charge of each. 



White 
Males. 



White 
Females 



Colored 



Colored 
Females 



Total. 



Cong'l Town's 
in which said 
persons reside. 



No. 



Range. 



Witness my hand this 



day of 



,18 



School Trustee of 
In submitting the foregoing form of notice, the state 
superintendent makes the following suggestions : 

" For the sake of uniformity, this notice is arranged to 
show the congressional townships in which the persons 
transferred reside. The utility of this may seem doubtful, 
as there is no provision of law that persons transferred to 
a civil township, beyond the 1'imits of their congressional 
township, shall receive their congressional township reve- 
nue in the civil township to which they are transferred. 
Such a provision would, in fact, in almost every case, have 
no other effect than to annoy and confuse officers with a 
multiplicity of intricate accounts. Still, as the law re- 
quires that the trustee's report shall show the congressional 



TOWNSHIP TRUSTEES. 



273 



townships in which the children in their respective corpo- 
rations reside, and as a case possibly may arise in which 
such a showing would be essential to a correct administra-* 
tion of the law, it should never be omitted." 

Basis of Apportionment. 

(School Law, Section 42.) 

Basis of apportionment of common school revenue to 
the several townships, towns, and cities of county, in 

the State of Indiana, made by , county superintend- 

ent, and filed with the auditor of said county, on the first 
day of June, 18 , as required by section 42 of the school 
law : 



Names of Town- 
ships, Town 
or City. 



No. and Range of 
Congressional 
Townships and the 
parts of Congres- 
sional Townships 
forming school 
corporation. 



No. of children in 
eachCongression'l 
Township and part 
thereof included 
in or forming 
school corporation 



Whole number 
of ch ildren to 
each civil Town- 
ship, Town, or 
City. 



I, , county superintendent in and for said county, 

hereby certify that the foregoing correctly shows the name 
of each school corporation in said county, the congres- 
sional township and parts of congressional township which 
form or include each school corporation, the number of 
children enumerated for school purposes in each congres- 
sional township and part thereof, when the same includes 
or is included in two or more school corporations, and the 



274 



TOWNSHIP TRUSTEES. 



whole number of children so enumerated in each school 
corporation. 



County Superintendent. 
Statement of Transfers for School Purposes. 

(School Law, Section 13.) 

Statement of transfers for school purposes, which have 
been made under sections 14 and 16 of the school law, 
made and filed with the county auditor by , county 

superintendent of county, pursuant to the latter 

clause of section 13 of the school law. 



Names of per- 
sons transferred 



Date when 

transfer was 

made. 



Township, Town 
or City in which 
person transfer- 
red resides. 



Township, Town 

or City to which 

transfer was 



I , county superintendent of said county, hereby 

certify that the foregoing is a complete list of all transfers 
for school purposes now existing in this county, so far as 
the same have been reported to me. 



County Superintendent. 



"This statement must be made annually, and must in- 
clude not only the transfers made at the enumeration which 
is being reported, but all transfers in fact existing. Upon this 
latter point the law is not express, but it is thought best 
for the sake of certainty and convenience, to require annu- 



TOWNSHIP TRUSTEES. 



275 



ally a full statement of all transfers in fact existing on the 
first day of May." 

Enumeration of Congressional Townships Divided by 
a County Line. 

(School Law, Section 42.) 

Statement by the county superintendent to the auditor 
of county, showing the congressional township, lying 

partly in said county, and partly in others, whose funds are 
managed in said county, the number of children enumerated 
for school purposes in each part and in the whole of said 
townships : 



No. aDd Range 

of divided Town- 

6hip. 



Coun's in which 

the several 
parts of such 
Townships lie. 



No. of Children 
in each part of 
such Townships 



Whole number 

of children 

in each of such 

Townships. 



I, , county superintendent of county, hereby 

certify that the foregoing correctly shows the congressional 
township divided by the county line, whose funds are man- 
aged in this county, the number of children enumerated 
in each part of each of the townships so divided, and the 
whole number enumerated in each of such townships, ac- 
cording to the latest reports of trustees now on tile in my 
office. 

County Superintendent. 

The statute does not specify the steps to be taken to pro- 
cure the revocation of a teacher's license. 



276 TOWNSHIP TRUSTEES. 



The county superintendent may act upon his own mo- 
tion without any petition. It is clearly his duty, when 
complaint is made to him in writing, to notify the teacher 
complained of and advise him of the charges made against 
him, and afford him an opportunity to make his defense. 

Notice to a Teacher of Proceedings to Kevoke his 

License. 

County Superintendent's Office, County, 18 . 



You are hereby informed that proceedings have been 
commenced in my office for the revocation of your license 
as a school teacher of said county. 

You are charged with (here insert general charge, as 
cruelty, immorality, incompetency, or general neglect of 
business.) 

And it is alleged that on or about the day of , 

18 , at , and at divers other places, you (here insert 

specific charge). 

I will, at my office, on the day of , 18 , in- 

vestigate these charges by the examination of witnesses. 

You are hereby notified to attend at said time and place, 
and have present such witnesses as you deem necessary to 
your defense. 



County Superintendent. 

Notice to Trustee of Eevocation of Teacher's License. 
County Superintendent Office, County, 18 . 



School Trustee of 
You are hereby notified that the license of , a 

school teacher of this county, which was issued on the 
day of , 18 , by , then county superin- 

tendent of said county, has been by me this day revoked 



TOWNSHIP TRUSTEES. 277 

for , by virtue of the authority vested in me by the 

thirty-sixth section of the school law. 

You will take due notice of this revocation, as hereafter 
it will be unlawful to employ said to teach in any of 

the schools of this county, unless he shall again be licensed. 

Witness my hand this day of 18 . 

County Superintendent. 

" There is no provision of law requiring this notice to be 
given to trustees. It is nevertheless necessary. Without 
it trustees will not be warned against employing the teacher 
whose license is revoked, as it can not be supposed that 
they will have personal knowledge of the revocation. It 
should be given to each trustee in the county, and entered 
upon the records of the county superintendent's office. 
The revocation will then be made effectual, and become a 
matter of more concern to teachers.'' 

The superintendent should make a record of his pro- 
ceedings in such cases, and if his action is based on a 
petition, he should also set out in the record a copy of the 
complaint filed with him for the revocation of the license. 

The township trustee may dismiss a teacher at any time 
for good cause shown upon a petition signed by a majority 
of the voters in any school district. 

The department of public instruction has not prescribed 
any form for such petition, but no particular formality is 
required in such case. The following will be sufficient : 

Petition for Dismissal of Teacher. 

(School Law, Section 28.) 

To , Trustee of Township of County, State 

of Indiana : 

Your petitioners, constituting a majority of the voters of 
school No. , in said township, hereby request that , 

the teacher of said school may be dismissed from his em- 



278 TOWNSHIP TRUSTEES. 

ployment as such teacher for the following reasons [here 
state the grounds of complaint]: 
October 2, 1877. 

[Petitioners 1 names.~\ 

The statute requires that due notice of the pendency of 
the petition- shall be given to the teacher, but does not fix 
the length of notice which the teacher should have of the 
time of hearing the complaint. Three days will ordinarily 
be sufficient. The trustee, should, however, allow the teacher 
ample time, in all cases, to fairly present his defense, but 
should not permit unreasonable delay. 

Notice to a Teacher of Petition for his Dismissal. 

(School Law, Section 28.) 

Trustee's Office, Township, , 18 . 



A petition, signed by a majority of the legal voters of 
school No. , in said township, has this day been filed 
with me, praying your dismissal from employment as 
teacher of said school, and alleging as cause therefor [here 
insert cause alleged^] 

Said petition will be heard at , on the day of 

18 , at o'clock 

You are hereby notified to attend at said time and place, 
and have with you such witnesses as you deem necessary 
to your defense. 

i 
Trustee. 

Before entering upon the discharge of their duties, the 
county superintendent must take an oath in the following 
form, which may be administered by any officer having au- 
thority to administer oaths. 

Oath of Office of County Superintendent. 

(School Law, Section 33.) 

I, , do solemnly swear that I will support the Con- 

stitution of the United States, and the Constitution of the 



TOWNSHIP TRUSTEES. 279 

State of Indiana ; and that I will perform all the duties of 
the office of county superintendent of county, hon- 

estly, impartially, faithfully, and according to law, to the 
best of my ability, during my term of office. 

Sworn and subscribed before me, , a , on the 

day of 18 . 

County superintendents may be removed from office by 
the county board, for good cause shown. The statute does 
not specify by whom or by how many persons such petition 
must be signed. It would seem to be clear that any voter 
of the county has the right to institute a proceeding for 
the removal of the superintendent. The proceedings may 
be instituted by filing a petition with the county commis- 
sioners similar in form to a petition for the dismissal of a 
teacher, or it may be by complaint. The charges against 
the superintendent should be clearly and plainly stated. 

Notice of Proceeding to Eemove County Super- 
intendent. 

(School Law, Section 33.) 

Before the Board of County Commissioners, Term, 18 . 



County Superintendent of County . 

A (here insert nature of writing, as complaint or peti- 
tion,) has been filed with the board of county commis- 
sioners of said county, charging you with , in this, 
that on or about the day of , 18 , at , and 
at divers other times and places, you (here insert charge), 
and praying your removal from office as county superin- 
tendent. 

You are hereby notified that said will be heard and 

determined at the next term of the board of county com- 
missioners, to be begun and held at , on the day 
of ,18 , and to be present and answer said 



280 TOWNSHIP TRUSTEES. 

Witness my hand and official seal, this day of 

,18 . 



Auditor. 

Form No. 19. — Notice Gtyen by the Auditor of a 
County, Managing the Fund of a Congressional 
Township, Divided by a County Line, to the Au- 
ditor of the County in which a Part of such 
Township Lies. 

(School Law, Section 112.) 

Auditor's Office, County, Ind. 



Auditor of County : 

You are hereby notified that there is due from this 
county to that part of congressional township No. , 

range , lying in your county (the fund of which 

township is managed in this county), the sum of % 

The enumeration of said township, according to the 
latest reports on file in my office, is as follows : 

Part lying in county, 

Part lying in county, 

The last enumeration of that part lying in your county, 
on file in my office, bears date of the day of , 18 . 

The whole amount of revenue now on hand belonging 
to said township is $ , giving cents per child enu- 

merated for school purposes in the township. 

Witness my hand and official seal this day of 

,18 . 



Auditor. 

" This form designedly calls for a very full report, in 
order that the county auditor receiving the notice, and 
through him the county commissioners, may be informed 
whether the enumeration of that part of the congressional 
township lying in their county is properly reported to the 



TOWNSHIP TRUSTEES. 281 

county superintendent of the county in which the fund of 
such township is managed, as required by section 19 of the 
school law, and in order that all ground for suspicion of un- 
fairness or impartiality may be removed. Many complaints 
come to this office concerning the division of the revenues 
of congressional townships divided by county lines, and 
occasionally officers making the division are charged with 
partiality. 

" It is believed that the use of this form will effectually 
prevent complaints and intimations of unfairness." 

Form op Contract between Trustee and Teacher. 
It is hereby contracted and agreed between A B- 



township trustee of township, county, State of 

Indiana, and C D — — - , a regularly licensed teacher of 

said county, that the said C D shall teach the 

school in district number in said township, for the term 
of weeks of five days each for the sum of dollars 

per day, commencing on the first day of October, 1877. 

And the said C D agrees faithfully to teach said 

school to the best of his ability, and to keep a register of 
the daily attendance of each pupil connected with the 
school, and make such report to the said township trustee, 
or to his successor in office, as is required by law, and to ob- 
serve and enforce all rules and regulations established by 
the township trustee for the management and government 
of said school. 

And it is further agreed by the parties hereto that the 

said C D shall use his best endeavors to preserve 

in good condition the school house and premises connected 
with it, and also the furniture and apparatus belonging 
thereto, and also all books and records provided by the said 
trustee for the use of said school, and to deliver the same 
to the said trustee or to his successor in office, at the close 
of said term of school in as good condition as when received, 
natural wear and tear excepted. And it is further agreed that 



282 TOWNSHIP TRUSTEES. 

said C D — — shall attend the full session of each 

teachers' institute held in said township during the contin- 
uance of said school, and if he shall fail so to do he will 
forfeit one day's wages, as such teacher, for every day he 
may be absent from such institute, unless such absence 
shall be occasioned by sickness. 

And the said trustee agrees to keep the school house in 
said district in good repair, and to provide the necessary 
fuel for the use of said school during said term, and to pay 
to said C — — D — — the sum of dollars, said sum be- 

ing the amount of wages at dollars per day, as above 

agreed upon, to be paid upon the receipt by the trustee of 

the report by said C- D as teacher of said school, 

made, subscribed, and sworn to (or affirmed), as the law 
provides. 

Provided, that in case said C D shall be dis- 
missed from school by the said trustee for gross immor- 
ality, incompetency, or any violation of this contract, or 
if his license as a teacher shall be annulled by the county 
superintendent, he shall not be entitled to any compensa- 
tion as such teacher from and after such annullment or dis- 
missal. 

In witness whereof, we have hereunto subscribed our 
names this day of , A. d. 1877. 

A B , 

Township Trustee. 

C D , 

Teacher. 

Form of Teacher's Eeport to Township Trustee, re- 
ferred TO IN THE FOREGOING CONTRACT. 

Eeport of the teacher of School No. , in the township 
of , county of , and State of Indiana, to the Trustee 
of said township, for the school term opening on the 
day of 18 , and closing on the day of 18 . 



TOWNSHIP TRUSTEES. 



283 



Statistics. 



Number of days in the school term 

Number of teachers employed in said school : male, , 

female, . 

Average daily compensation of male teachers in primary 

schools* 

Average da ly compensation of female teachers in pri- 
mary schools 

Average daily compensation of male teachers in high 

schools 

Average daily compensation of female teachers in high 

schools 

Number of male pupils enrolled between G and 21 years 

of age 

Number of female pupils enrolled between 6 and 21 years 

of age 

Whole number of pupils enrolled between G and 21 years 

of age 

Average daily attendance for the term 



Total. 



Dollars. Cents 



*Note 1. — The term " primary," as used in this report, includes all schools in which 
all or a majority of the branches taught are prescribed by law. (See Section 147.) 
The term " high school " includes all schools above the primary. 

Note 2 — Until this report is properly filled and filed with the Trustee, the teacher 
is not legally entitled to more than 75 per cent, of his wages. 



Branches Taught. 



ext Books used in each Branch 



No. of Pupils 

studying 
Each Branch. 



Orthography 

Reading 

Writing 

Arithmetic , 

Geography 

English Grammar 

Physiology 

History of the United States 



I, , teacher of the above-named school, do solemnly 

swear that the above report is true to the best of my know- 
ledge and belief. 



Teacher. 
Subscribed and sworn to before me, this day of 

,18 . 



Trustee. 



INDEX. 



ANIMALS— 

"What animals may run at large, and how determined, 1. 

"Without such permission, may be taken up when at large, 1. 

Person taking up must give notice, form of such notice, 2. 

How owner may redeem, 2. 

Notice required if owner unknown, form of such notice, 2. 

Owner may reclaim within ten days, form of affidavit, 3. 

Taker-up of animals must take care of them, 3. 

If animal unclaimed, further proceedings, 4. 

Ten days' notice before sale, form of notice of sale, 4. 

Pinal proceedings in case of sale, 4. 

Dogs subject to tax, who entitled to receive tax, 5. 

Claim for sheep killed by dogs, how presented, form of claim, 5 

Owner of dog liable for damages, 6. 

"When dogs may be killed, 6. 

"When owner of animals not liable for damage done by them, 7. 

"When he is liable, 91. 

Diseased sheep not to run at large, 7. 

"When dead animals must be buried or burned, 8. 

Diseased animals, when owner liable for damages, 8. 

Evidence in suit against owner of diseased animals, 9. 

"When unlawful to bring Texas cattle into state, 9. 

Cruelty to animals, how punished, 9. 
See Estrays ; Articles Adrift ; Fences. 
APPEALS— 

"When may be taken from commissioners in relation to highways, 
108. 

Overseers of the poor may appeal in certain cases, 124. 

May be taken from school trustee and county superintendent, 
when, 169, 170. 

And from decision of school director to trustee, 145. 

Form of appeal in such case, 266. 

Notice of appeal from director, 267. 

Becord of trustee in appeals from director, 267. 

(285) 



286 INDEX. 



APPRENTICES— 

When township trustees may bind, and whom, 10. 
How long such persons may be bound, 10. 
Superintendent of county asylums may bind, 10. 
Indentures. 

How executed, where filed, and record-ed, 11. 

Damages for failure to educate apprentices, 11. 

When agreement to educate apprentice is not required, 12. 

Valuable agreements in indentures, 12. 

Circuit court may annul indentures, 13. 

And may also compel return of absconding apprentices, 13. 

"When indentures can not be assigned, 13. 

Number of hours apprentices may be required to labor, 14. 

Child may be bound by father, mother, or guardian, 14. 

"When minor may bind himself, 14. 

Within what time suit must be brought on indentures, 16. 

When indentures may be transferred, 14. 

Manual labor schools may bind children, 14. 

Personal liability of trustees of, 15. 

When trustees of soldiers' homes may bind children, 15. 

Effect of death or removal of master from state, 13. 

Form of indentures, 16. 

ASSESSMENT OF TAXES— 

State Taxes. 

On what, and how assessed, 18. 
Who liable for poll tax, 18. 
What property liable to taxation, 18. 
Terms "real property" and ' ; lands ' defined, 18. 
Property exempt from taxation, 19. 

When auditor may rebate tax on property destroyed after assess- 
ment, 21. 
ASSESSOES— 
Election of, 21. 

Must give bond, on failure of which, auditor to appoint, 22. 
Auditor to furnish blanks and list of lands to assessor, 22. 
Auditor must furnish plats of townships, 22. 

ASSESSMENT OF EEAL ESTATE— 
How made, 23. 

When land must be assessed in name of occupant, 23. 
How certain lands of special description must be assessed, 23. 
How mortgaged property and undivided lands of deceased per- 
sons must be assessed, 24. 



INDEX. 287 



Assessment of Eeal Estate — Continued. 

Partners in mercantile business, bow assessed, 24. 

How real estate must be valued, 24. 

Assessor must call on every person for list of lands, 25. 

When owner is absent, or refuses to list, 26. 

How quantity of lands is ascertained, 26. 

Assessor must inform owner of assessment, 28. 

Return of assessment of real estate, how and wben made, 28. 

New improvements to be assessed, 30. 

When improvements are destroyed after assessment, 30. 

Refusal to list, 30. 

Returns of assessors, and correction of errors, 31. 

Auditor m&y correct errors in his real estate list, 31. 

ASSESSMENT OE PERSONAL PROPERTY— 
How and when made, 31. 

Duty of assessor wben owner refuses to list, 32. 
How and by whom indebtedness may be deducted, 33. 
"When assessment may be completed, 33. 
How personal property shall be valued, 34. 
How personal property must be listed, property of a minor by his 

guardian, 35. 
Property in trust by trustee thereof, 35. 
Of deceased persons by executors and administrators, 35. 
Of corporate bodies, by president, or agent, 36. 
Of a firm, by a partner thereof, 36. 
Real property, merchants and manufacturers' stock, listed where 

situated, 36. 
"When agent or owner must furnish list, 36. 
Property in hands of agents, when listed, 37. 
Personal property in transitu, stock in nurseries, 37. 
Personal property of bankers, insurance companies, gas and coke 

companies, 38. 
How removal of owners of property affects assessments, 39. 
Proper place to list how determined, 40. 
Schedule to be furnished assessor, 40. 
Poll tax, 40. 

Enlistment must relate to April 1, 40. 
Bankers and brokers, how listed, 41. 
Officers of chartered banks to furnish statements, 42. 
Penalty for failure to make such statement, 42. 
When banks must retain tax on stock, 42. 
Pawn-brokers, stock companies, and corporations, 43. 



288 INDEX. 



Assessment oe Personal Property — Continued. # 

Manufacturers, merchants, telegraph and railroad companies, 44. 

Proceedings when party fails to return schedules, 48. 

Penalty for giving false list, 48. 

Return of assessors, 49. 

List of property for statistical purposes: 49. 

Assessors may appoint deputies, 50. 

Compensation of assessors, 50. 
AUDITOPv— 

Must furnish blanks and list of lands to assessor, 22. 

Also plats of townships, 22. 

May correct errors in real estate list of assessors, 31. 

What officers must file bonds with, 51. 

Poll books and blank forms to be furnished by, 66. 

"When township trustee must make report of enumeration to, 76. 

Auditor to give notice of return of enumeration, 79. 

When auditor and treasurer may refund price of animals taken 
up and sold, 4. 

Duty of auditor in relation to highways on county lines, 112. 

Must examine and approve bonds of school trustees, 131. 

Duty of, in relation to school tax, 135. 

Basis of apportionment of school funds to be reported to, 151. 

Must certify sale of school lands, 158. 

Tax duplicate of towns may be delivered to, 206. 

Duty of, in relation to township stock in railroad companies, 252. 

Porm of report of one auditor to another of fund of township di- 
vided by county line, 280. 

BONDS AND GATES— 

What officers must take oath, and sign bonds, 51. 

Copy of oath to be filed, and where, 51. 

Official bonds, how executed, 51. 

When new bond may be required, 52. 

Liability of sureties where new bond is given, 52. 

Sureties may be released, and how, 52. 

Bonds of town officers, 203. 

Bonds of school trustees, 131. 
BALLOTS— 

Must be written or printed on plain white paper, 68. 

No distinguishing marks thereon, 68. 

Voter may write his name on, 68. 
See Elections. 
BALLOT BOXES. See Elections. 



INDEX. 289 



CLEEK OF CIRCUIT COURT— 

Must act as clerk of board of canvassers, 74. 

"When justices must report estrays to, 84. 

Must keep a record of estrays, 87. 

Duty of clerk to advertise in certain cases, 84. 

Certified statement of election of town officers filed with, 194. 

Such statement must be recorded by, 194. 

CLERK OF TOWN— 

Must be chosen at each election, 193. 

May call special meetings of voters by order of board of trus- 
tees, 194. 
Must give bond as ordered by board of trustees, 203. 
Duties of, 207. 
Compensation of, 207. 
Duties of in relation to sewers, 222. 

CONSTABLES— 

Election of, must give bond, duties of, 54. 

Duty when going out of office, 55. 

Territorial limits of their action, 56. 

May command assistance, 56. 

Duty in commitment of prisoners, 56. 

May arrest fugitives from justice, 56. 

Liability on bond for failure of duty, 56. 

Liability for failure to pay over money, 56. 

Duty in attachment cases, 57. 

Summons for garnishee, 57. 

Constables' sales, 57. 

Process, where served, 58. 

May take delivery bonds, 58. 

Duty in relation to coroners' inquests, 58. 

Forms, 58 to 61. 
COUNTY SUPERINTENDENT— 

By whom and when elected, 145. 

Must give bond, 145. 

How may be removed, 145. 

Vacancy in office, how filled, 146. 

Duties of superintendent, 146. 

Must examine applicants for license to teach, 147. 

Must certify branches applicant can teach, 147. 

Length of time for which he may give license, 147. 

"When may revoke license, 147. 

Must keep a record, 148. 



290 INDEX. 



County Superintendent — Continued. 

Must report to state superintendent, when, 148. 
General duties of superintendent, 149. 
When he must make enumeration, 150. 
His duties in relation to enumeration, 150. 
His duties in regard to apportionment of school funds, 151. 
Must examine dockets, when, 151. 
Compensation of, 152. 
See Schools. 

dikectoks, school- 
How chosen, 142. 

Duties of, 144. 

May suspend pupil from school, 144. 

When appeal may he taken from his decision, 145. 
See Schools ; School Law Forms. 
DOGS— 

Are subject to tax, 5. 

Claim for sheep killed hy, 5. 

When owner of is liable for damages done by, 6. 

When may be killed, 6. 
See Animals. 

ELECTIONS— 

Presidential, when held, and how conducted, 62. 

State election, when held, who elected, how conducted, 63. 

Township elections, time of, how conducted, officers chosen at, 63. 

County boards must establish precincts, and designate places of 
voting, 63. 

Township trustees ex officio inspectors of elections, 64. 

When commissioners must appoint inspectors, 64. 

Voters may appoint when inspectors fail to appear, 65. 

Number and qualifications of judges of election, and their ap- 
pointment, 65. 

Toting precincts in cities and towns, 65. 

Election boards to appoint clerks, their qualifications, 65. 

Inspector and judges must take oath, 66. 

Opening of polls to be duly proclaimed, 66. 

Blank forms to be furnished inspector by auditor, 66. 

County commissioners must furnish ballot-boxes, 66. 

Time of opening and closing elections, 67. 

Party or candidate may have representative at counting of votes, 
67. 

Description of tickets, and how votes shall be received, 68. 



INDEX. 291 



Elections — Continued. 
Challenge of vote. 68. 

Oath of citizen-voter, when challenged, form, 69. 
Oath of voter not a citizen, when challenged, form, 69. 
Oath of resident freehold voter required in case of challenge, 70. 
Oath to be signed in presence of board, 70. 
"Who are legal voters, 70. 

Persons in the military or naval service not entitled to vote, 70. 
Nor persons convicted of an infamous crime, 71. 
Counting votes, when commenced, how conducted, 72. 
Proper certificate of board as to result of election, 73. 
Compensation of officers of elections, 75. 
Penalty for illegal voting, 75. 
Election of town officers, 192. 
Blank forms to be furnished by county auditor, 66. 

ENUMEKATION— 

Must be made, once in six years, of all male inhabitants over 

twenty-one years, 76. 
Township trustees charged with this duty, 76. 
Must make record of same, noting age, and designating color, 76. 
Affidavit of trustee must be appended to report, 76. 
Must make report to auditor by July 1st, 76. 
Trustee may appoint assistant, 76. 
Assistant must make oath before entering on duty, 77. 
Must make certified return to trustee, 77. 
Trustee may correct errors of assistants, 78. 
Auditor to give notice of return of enumeration, 79. 
Penalty for violation of official duty, 79. 

ESTKAYS AND AETICLES ADPvIFT— 

Estray property must be advertised, and how, 81. 

Form of notice, 81. 

If not claimed within fifteen days, must be reported to justice, 81. 

Eorm of report to justice, and appended affidavit, 82. 

Justice must appoint three appraisers, their qualifications, 82. 

Must report their appraisement to justice, 82. 

Form of warrant to appraisers, 83. 

Form of appraisers' report to justice, with appended notice, 83. 

Justice must report to clerk of circuit court, 84. 

Property exceeding ten dollars in value must be advertised in 

newspaper, 84. 
In what cases property shall belong to taker-up, 84. 



292 INDEX. 



Estrays and Articles Adrift — Coriiinued. 

In what cases, and when, unclaimed property shall be reported 
to justice, 84. 

Justice must issue his warrant to sell property, form of such war- 
rant, 84. 

"When, and to whom, justice shall pay money, 85. 

Proceedings when property exceeds $20 in value, 86. 

Estray fund, how created, 86. 

Compensation to taker-up, and to taker of property adrift, 86. 

•Where fees are to be paid by taker-up, 86. 

Circuit court clerk shall keep record of estrays, 87. 

Compensation to taker-up for keeping property, 87. 

How, when animal has been worked, 87. 

How owner of property may redeem it, 87. 

"When certain animals must not be taken up, 87. 

Property not to be taken out of the county, 88. 

Patted hogs may be killed, 88. 

How stock hogs may be disposed of, 88. 

Articles adrift, when, and by whom, may be redeemed, 88. 

And on what proof surrendered, 88. 

"When owner may sue for such property, 88. 

Form of affidavit for recovery of freight, 89. 

Penalty for violation of estray laws, 89. 
See Animals ; Fences. 

FENCES— 

"What shall be deemed a lawful fence, 91. 
When owners of animals liable for damages, 91.- 
Outside fences, only, required to be lawful, 92. 
When animals may run at large, 92. 
When taker-up must advertise, 92. 

When, before advertising, must have damage examined and ap- 
praised, 92. 
Form of appraisers' certificate, 93. 
Form of advertisement, 93. 
How trespassing animals may be reclaimed, 94. 
Owner may controvert facts of alleged trespass and damage, 94. 
Form of denial, and further proceedings, 94. 
Final proceedings in the case, 95. 
Partition fences, what shall be deemed lawful, 95. 
Sufficiency of, how determined, 95. 
Form of notice to repair, 96. 
When party serving notice may repair, 96. 



INDEX. 



293 



Fences— Continued. 

Procedings to recover damage, and form of complaint, 96. 

Further proceedings before justice, 96. 

Defendant, before suit, may tender damages and costs, 98. 

"When, by further inclosure, outside fence becomes a partition 
one, 98. 

No person, inclosing land, must join another, without his con- 
sent. 98. 

But person so withholding consent must leave ground enough for 
half a lane, 99. 

Notice of removal of partition fence, 99. 

Removal of fence built by mistake, 99. 

Act providing for recording marks of fencing, 100. 

Act providing for fencing lands subject to overflow, 101. 

GERMAN LANGUAGE— 

When may be taught in public schools, 166. 

HIGHWAYS— 

What are highways, 102. 

Board of commissioners may establish, 102. 

Location, change, and vacation of, 103. 

Twelve freeholders must petition, of whom six must be in same 
locality, 103. 

County board must give three weeks' notice, 103. 

Such notice must be twenty days before hearing of petition, 103. 

Shall appoint three viewers, 103. 

Form of petition for location, and of notice thereof, 104. 

Duty of viewers, 104. 

Shall report proceedings to county board, 105. 

Subsequent duty of commissioners, 105. 

Who may remonstrate, 106. 

When commissioners may appoint reviewers, and proceedings 
thereon, 106. 

When board may appoint another viewer, 107. 

Duty of person procuring change of highway, 107. 

Highway not to be opened without payment or deposit of dam- 
ages, 107. 

Appeals, when and how taken, 108. 

Width of highways, 108. 

How highway on county or township lines may be worked, 108. 

Fences, how moved when a new road is laid out, 108. 

How credit on highway tax may be given for such removal, 108. 

When highways will be deemed vacated, 109. 



294 INDEX. 



Highways — Continued. 

Actual settlers on public lands, for purposes here mentioned, 

deemed freeholders, 109. 
Who disqualified for viewers, 110. 
Compensation of viewers, 110. 
When persons may petition for change of highway through their 

own land, 110. 
Notice thereof to be given, 110. 
Proceedings before commissioners, 110. 
Remonstrance may be filed, 111. 
Roads on county lines, how worked, 111. 
Duty of auditor therein, 112. 
Form of viewers' report, 113. 
Form of remonstrance, 114. 
Form of reviewers' report, 115. 
Any freeholder may remonstrate, 115. 
Form of such remonstrant's report, 115. 
Proceedings thereon, 116. 
See Supervisors. 

JUSTICES OF THE PEACE— 

Number of, and how determined, 117. 

Not to exceed three for each township, 117. 

To which one may be added for each incorporated town, 117. 

And two for each incorporated city, 117. 

Vacancies filled by appointment of commissioners, 117. 

When elected, 117. 

Circuit clerk must give trustee notice of election thirty days be- 
fore, 117. 

Sheriff must give notice of election, 118. 

Ineligible during official term to any non-judicial office, 118. 

Extent of jurisdiction in civil and criminal cases, 118. 

Cases in which they have no jurisdiction, 118. 

May administer oaths and solemnize marriages in their own coun- 
ties, 118. 

Must keep record of their acts in suitable books provided by 
county board, 118. 

Resignation of office must be to circuit clerk, 118. 

When may act as coroner, 119. 

LIBRARIES, TOWNSHIP— 

Shall be in charge of township trustee, 165. 
Trustees accountable for preservation of, 165. 



INDEX. 295 



Libraries, Town ship — Continued. 

Duties of trustees in regard to, 165. 

Where to be kept, 165. 
See Schools. 
POOR— 

Each county must support its own, 120. 

Township trustees overseers of poor, ex officio, 120. 

Suits for or against officers conducted in name of township, 120. 

Legal settlement, how acquired, and how lost, 121. 

Duty of overseers in counties without poor-houses, 121. 

When county commissioners must give assistance, 122. 

Duty of overseers when poor are ill-treated, 122. 

Overseers must keep record, 123. 

Must record therein names of all persons entitled to relief, and 
unable to take care of themselves, 123. 

Who may apply to be placed on list, 123. 

Duty when legal residence of poor is unknown, 123. 

Temporary relief, when granted, 123. 

When poor person may be removed, 123. 

Form of complaint in such case and proceedings thereon, 124. 

Decision how appealed from, notice to overseer, 125. 

Overseer must receive persons sent by justice, 125. 

Contracts for support of poor, how paid, 125. 

Overseer must settle annually with county board, 125. 

When non-resident must be relieved, 125. 

When funeral expenses of such must be borne, 126. 

County asylums, when and how built, 126. 

Superintendents of asylums, how appointed, 126. 

How when two or more counties unite, 126. 

Money, how raised to build asylums, 127. 

When built, paupers to be kept therein, 127. 

Who are excepted therefrom, 128. 

Duty of superintendent and county board, 127. 

When overseers must present their reports and accounts, 128. 

Further duty of county board, 128. 

Compensation of overseers, 128. 

Duty of overseer upon removal from his township, 129. 

ROADS. See Highways ; Supervisors. 
SCHOOLS— 

School corporations, each civil township a school corporation, 130. 
Also each incorporated town or city, 130. 
May make contract, sue, and be sued, 130. 



296 INDEX. 



Schools — Continued, 

Trustees thereof, when elected, and term of office, 130. 

Duties of school board for towns and cities, 130. 

Duties and official oaths, 131. 

Vacancies, how filled, 131. 

Compensation of trustees, 131. 

Auditor must examine and approve bonds of trustees,*131. 

May appoint to fill vacancies, 131. 

Must report names and address of trustees to county superin- 
tendent, 131. 

County board, in session, may appoint trustees to fill vacancies, 
132. 

School trustees must keep accounts, and make reports, their duty 
therein, 132. 

Must report to county board, who shall carefully examine same, 
133. 

And within ten days thereafter trustees must report to county 
superintendent, 133. 

On failure of performance of duty may be sued on bond, 133. 

Trustees must keep full record of all proceedings, 134. 

And fully report annually to county board, 134. 

Powers of school trustees, 134. 

May appoint school superintendents in cities and towns, 134. 

May prescribe their duty, and direct in discharge thereof, 134. 

Trustees of two or more corporations may establish joint graded 
schools, 134. 

And exercise all power to carry them into full effect, 135. 

All schools in any township must be taught an equal length of 
time, 135. 

For what purposes school trustees may levy tax, 135. 

County auditor shall make assessment thereof, and place on 
duplicate, 135. 

Trustees must make enumeration, when and how, 137. 

"When trustee may transfer from one to another township, 138. 

"Where persons, so transferred, shall pay their tax, 139. 

Trustee to file with county superintendent his list and enumera- 
tion annually, 139. 

How when township in two or more counties, 139. 

Teacher, at close of school, to report to trustee, 139. 

Matters embraced in such report, and how verified, 139. 

Trustees must report to county superintendents, 140. 

Such reports must embrace all matters reported by teachers, 140, 



INDEX. 297 



Schools — Continued. 

Liability of trustee for failure to report, 141. 

And penalty for failure to perform his duties, 141. 

Directors of school districts, how chosen, 142. 

How school meetings may be held, and their powers, 142. 

Such meetings have no power to employ teachers, or fix their sal- 
aries, 143. 

Teachers must have certificates of qualification, 143. 

How teachers may be dismissed, 143. 

Duty of directors of school districts, 144. 

County superintendents, how and when chosen, 145. 

Must give bond, 145. 

How superintendent may be removed, 145. 

Yacancy in office of, how filled, 146. 

Duties of superintendent, 146. 

Must examine all applicants for teachers' license, 147. 

And certify branches each applicant can teach, 147. 

Shall give license for limited periods, 147. 

School meetings in townships may designate branches to be 
taught, 147. 

But no branches can be dispensed with in towns and cities, 147. 

Superintendent may revoke license for cause, 147. 

Superintendent must keep record, and report to superintendent 
of public instruction, 148. 

State board of education may license teachers, 148. 

General duties of superintendent, 149. 

"When superintendent must make enumeration, 150. 

Must report to state superintendent, and duty therein, 150. 

Must make basis of apportionment of school funds in the sev- 
eral townships, towns, and cities in his county, and report 
same to county auditor annually, 151. 

Must examine dockets of certain officers, 151. 

Compensation of, and duty of county board therein, 152. 

County board of education, who constitute it, 152. 

Its duties and powers, 152. 

Township institutes, mode of conducting, 153. 

Obligation of teachers to attend them, 153. 

Lands belonging to congressional township fund, 153. 

Duty of trustee in relation thereto, 153. 

"When trustee may lease lands, 154. 

When lands are divided by civil township lines, 154. 

Powers of trustee in relation to such lands, 154. 



298 INDEX. 



Schools — Continued. 

Sale thereof, how determined, 155. 

Proceedings in such sale, terms thereof, 155. 

Duty of trustee if, in certain cases, purchaser cuts timber, 157. 

When deeds to be issued, 157. 

How purchase will be forfeited, 157. 

"When purchaser will be liable for waste, 158. 

When land may be sold at private sale, terms, 158. 

Auditor to certify sale of school lands, 158. 

Liability of purchaser for failure to make first payment, 159. 

All payments to be made to county treasurer, 159. 

When deed shall be made, 159. 

Voters of congressional township may petition for sale of land, 

159. 
Concerning loss of certificate of purchase, 160. 
When land is sold without title thereto, 160. 
Trustee may sell old school house when new one is built, 160. 
Title of school lands, in whose name, 161. 
When and how public school house may be used for private 

school, 161. 
When school houses may be used for purposes other than 

schools, 161. 
When trustees of adjacent townships or counties may build school 

houses, 162. 
How expense must be borne, 162. 
When township trustee may issue bonds to build school houses, 

162. 
Provisions of legislative act relating to conditional donations foi 

erecting school buildings, 163. 
Management of schools in cities of 30,000 and upward inhabit 

ants, 164. 
Common council of any city, without regard to population, may 

organize in the same manner, 164. 
Such school boards may supply deficiency of funds by temporary 

loans, 164. 
Trustees and common councils may levy tax for school purposes, 

165. 
Limit of such tax, and manner of its assessment and collection, 

165. 
Township libraries, in charge of trustee, books can not be sold, 

165. 
Trustees accountable for, and their duties relating thereto, 165. 



INDEX. 299 



Schools — Continued. 

Colored children, where practicable, to be organized in separate 
schools, 166. 

Duties of trustee in relation to colored children, 166. 

Branches to be taught in common schools, 166. 

"When the German language must be taught therein, 166. 

Statute forbids exclusion of Bible from common schools, 166. 

Trustees and parents of children attending school may demand 
its use, 167. 

Teachers must have good moral character, 167. 

Teachers in government of schools may inflict corporal punish- 
ment, 167. 

But are accountable for its abuse, 168. 

Penalty for insulting teacher in presence of pupils, 168. 

Length of school terms, certain periods of time defined, 169. 

Suits by and against school corporations, how conducted, 169. 

Appeals from superintendent or trustee, how taken, 169. 

"When school officers may administer oaths, 170. 

SCHOOL HOUSES— 

"When may be sold, 160. 

"When may be used for private school, 161. 

"When for purposes other than schools, 161. 

"When may be built by adjacent townships or counties, 162. 

How expense of shall be borne in such case, 162. 

"When township trustee may issue bonds to build, 162. 

Act relating to donations to build, 163. 

"When town trustees may issue bonds to build, 199. 
SHEEP— 

"When killed or injured by dogs must be paid for, 6. 

Form of claim, 5. 

To whom claim must be presented, 5. 

Owner of dog killing sheep liable for damage, 6. 

If diseased not allowed to run at large, 7. 

Penalty for selling diseased sheep, 7. 
See Animals. 
SUPEBVISOES OF HIGHWAYS— 

"When elected and their qualifications, 171. 

Vacancies how filled, 171. 

Penalty for failing to serve, 172. 

Oath of office and further duties, 172. 

Notice to persons to work on highways, 173. 

Substitutes may be furnished, 173. 



300 INDEX. 



Supervisors of Highways — Continued. 

Forfeiture for failure to labor faithfully, 173. 

Suit to be brought against persons failing to labor, 173. 

Penalty for failure to bring such suit, 174. 

Persons liable to work may pay commutation, 174. 

"Who deemed able-bodied and who exempt, 174. 

How money recovered shall be expended, 175. 

Certificate to persons performing excess of work, 175. 

How supervisor may enter on adjoining lands, and how pro- 
ceed, 176. 

When material should be taken from roadway, 177. 

Guide-boards must be maintained, 177. 

When trees within limit of new highway may be removed by 
wner, 177. 

When owners of contiguous farms must remove obstructions, 178. 

Koad-tax may be worked out, 178. 

How tax must be expended, 178. 

Trustee may let contract for repairs, 178. 

When commissioners shall perform duties of trustees, 179. 

Penalty for injuring dam, drain, etc., 179. 

Form of complaint for obstructing highways, 180. 

Penalty for supervisor's failure in duty, 181. 

Successor to collect delinquencies, 181. 

How money in county treasury belonging to district must be ap- 
plied, 181. 

Money for improvement of roads when and how expended, 181. 

Supervisor must make report, when, and to whom, 182. 

Duty of trustee on failure of supervisor to make report, 182. 

Supervisor responsible for tools, 182. 

Compensation of supervisors, 183. 

Duties of supervisors as to roads in incorporated towns, 183. 

Duty of supervisor when road is changed by railroad, 183. 

Duties of supervisors in other special cases and their liability, 
184. 

When suits for penalty may be brought, 185. 
See Highways. 



TEACHERS— 

At close of school to report to trustee, 139. 

Report must be sworn to, 139. 

Must have certificate of qualification, 143. 

May be dismissed, when, 143. 

License may be revoked, when, 147. 



INDEX. 301 



Teachers — Continued. 

Must attend township institutes, 153. 
Must have a good moral character, 167. 
May inflict corporal punishment in moderation, 168. 
Penalty for insulting teacher in presence of pupils, 168. 
See Schools. 

TEXT BOOKS— 

May be changed by county board of education except in cities, 

152. 
When such change may be made, 152, 153. 
See Schools. 

TOWNS— 

Formation of, survey of territory necessary, 186. 

Form of surveyor's affidavit, 186. 

Census of inhabitants within territorial limits to be taken, 186. 

Manner of taking such census, form of affidavit thereto, 187. 

Conditions required to insure due notice of interested parties, 187. 

Petition to board of commissioners, form thereof, 188. 

Form of affidavit to petition, 189. 

Notice of presentation of petition, 169. 

Preliminary proof to be made by applicants, 190. 

Notice of meeting of qualified voters within proposed limits, 190. 

Meeting of voters, proceedings therein, and how vote shall be 

taken, 191. 
Report of result of such election to the county board, 191. 
Action of county board based on such report, 191. 
Inspectors must divide town into three or more districts, 192. 
First election of town officers, how taken, 192. 
Subsequent elections, time of, and how conducted, 192. 
Action of legislature at special session, 1877, on the subject, 193. 
What officers shall be elected, and how result determined, 193. 
Inspectors must make return to clerk of circuit court, 194. 
Vacancies, how filled, 194. 

Organization of board of trustees, oath, and duties, 194. 
Town shall be a body corporate, 194. 
Special meetings of voters, how called, 194. 
Powers of boards of trustees, and their duties, 195. 
Board may provide for assessment of fines, and how money must 

be appropriated, 198. 
Claims against towns, how prepared and presented, 198. 
When trustees may issue bonds to pay for school houses, 199. 



302 INDEX. 



Towns — Continued. 

Limit to such issue of bonds, and necessary prerequisites to their 

issue, 199. 
Form of school trustees, report to town trustees of cost of ground, 

building, and balance indebtedness for which relief is asked, 

199. 
Town trustees must pass ordinance for such issue of bonds, 200. 
Limits and conditions for their issue and sale, 200. 
Proceeds of bonds, how disposed of, 201. 
Trustees must levy tax to pay interest, 201. 

Surplus special school revenue may be paid on indebtedness, 202. 
When town may borrow money for other purposes, 202. 
Form of petition of owners of five-eighths of taxable property in 

town limits, for such purpose, 203. 
Affidavit thereto appended, 203. 
Duty of trustees if petition is sufficient, 203. 
Bonds of town officers, 203. 

Disposition of books, papers, etc., of retiring officers, 203. 
"When board of trustees must determine annual assessments for 

general purposes, 204. 
Assessments, under what rules made, how conducted, and final 

return, 204. 
Trustee's public notice of assessor's return, 204. 
Levy of tax, and warrant for collection thereof, 204. 
Powers of marshal in collecting taxes, 205. 
Eeal estate sold for taxes may be redeemed, 205. 
Conditions precedent, and attending such redemption, 206. 
Duplicate may be delivered to county auditor, 206. 
Town treasurer's duties, 206. 
Eeceipts and expenditures to be published, 207. 
Duty of town clerk, 207. 
Marshal's powers and duties, 207. 
Trustees shall superintend grading, paving, and improving 

streets, 207. 
Duties of fire wardens, 207. 

Board of trustees may fix fees of other officers, 207. 
Improvement of streets, how determined and executed, 208. 
Inhabitants of towns subject to road tax, 208. 
Proceedings to include out-lots, form of petition, 209. 
Form of order to include such out-lots, 209. 
Trustees may annex platted lots adjoining their towns, 210. 
How territory not platted or recorded may be annexed, 211. 



INDEX. 303 



Towns — Continued. 

Form of petition therefor, 211. 

Proceedings before board of county commissioners, 213. 

Jurisdiction of trustees, 214. 

How corporation may be dissolved, 214. 

Form of petition to dissolve corporation, 215. 

Proceedings by town board on hearing petition, 215. 

When regularity of town organization may be presumed, 216. 

Old towns may incorporate under present law, 217. 

Proceedings in such case, 217. 

No liability of town to be affected by dissolving organization, 218. 

Penalty for violation of town ordinances, 218. 

Enforcement of such penalty, an intended ordinance against 

tramps and vagrants, 219. 
When lands in towns exempt from taxation for town purposes, 

219. 
When suburban land may be excluded from boundary of town, 

219. 
Board of trustees may construct sewers, 220. 
Proceedings of board before constructing sewers, 220. 
Appointment of appraisers and estimate of benefits to owners of 

property affected by such sewers, 221. 
Copy of order to be issued to appraisers, 221. 
Majority competent to act, 221. 
When trustees must order sewer to be made, 221. 
Costs to be divided among owners of lots, 221. 
Cost of sewer, how collected, 222. 
When ten per cent, penalty will be added, 222. 
Lien on lots in favor of town, 223. 
What costs to be paid out of treasury, 223. 
Trustees must direct work, 223. 

Trustees may order part of costs to be paid from treasury, 223. 
Time and manner of payment must be provided for, 224. 
Ordinances in reference to sewers, 224. 
Streets, alleys, and bridges, boards of trustees to have charge of 

within corporate limits, 224. 
Proceedings to open or widen streets or alleys, 225. 
Town board shall appoint three commissioners to view proposed 

improvement, 225. • 

Proceedings and qualifications of such commissioners, 225. 
Shall assess benefits and damages of proposed improvement, 226. 
Damages assessed must be tendered, 226. 



304 INDEX. 



Towxs — Continued. 

Duty of board if appropriation is made, 226. 

When owner of lands is an infant, 227. 

Petition for improvement of street, 227. 

In whom vacated property will vest, 228. 

Vacation of an addition, 229. 

Petition to change name of town, 229. 

Estimate of cost of improvement, when made, how cost shall he 

apportioned, 230. 
When survey and plat of town is lost, 231. 
Trustees may order sidewalks improvement, when work may he 

let, 231. 
How paid when completed, 232. 
Cost may be collected from owner of lots, 232. 
Associations to build towns may be incorporated, proceedings at 

first meeting, 232. 
Statement and notice to be filed and recorded, 233. 
First meeting to consist of twenty or more persons, 233. 
When corporation is complete, may acquire and sell real estate, 

must keep record, 233. 
Lands held by trustees must be conveyed to association, 234. 
Person laying off town must record plat thereof, which must be 

acknowledged, 234. 
Donations shall be fully carried out, 234. 
Penalty for failure to comply with statute, 235. 
When plat is imperfect new one to be made, vacation of streets, 

etc., 235. 
When towns may adopt a survey and plat, 237. 
When town plats must be transferred for taxation, 237 
Towns may erect prisons, may plant and maintain shade trees, 

238. 
Hay pass laws to remove garbage, slops, etc., 239. 
When portion of street may be inclosed for culture of trees, 239. 
Fire-limits, how established, 239. 
Form of ordinance establishing such limits, 240. 
Eiding on side-walks prohibited, 241. 
Xo property qualification required of town officers, 241. 
Qualification of voters, marshal, how chosen, 241. 
Provision for assessment of real estate in towns, 241. 
Shares of bank stock, when liable to be taxed by towns, 242. 
Duties of county auditor in reference to bank statements, 242. 
Duties if no such statement is made, 242. 



INDEX. 305 



Towns — Continued. 

Duties of town officer with reference to copy or statement, 242. 

Taxes on bank stock, how paid, taxes a lien on stock, 243. 

When a town may be united with a city, 244. 

How an election may bb ordered, 244. 

Notice of agreement and election, 244. 

Election, when and where held, 244. 

Eeport of inspectors and judges and proceedings thereon, 244. 

Effect of annexation and consolidation, 245. 

"When a town may be incorporated as a city, 245. 

When the taking of a town census in such case may be dispensed 

with, 246. 
Duty of marshal, 246. 
Unless census return shows a population of two thousand, or 

more, no further proceedings to be had, 246. 
Failure of persons to serve as judge or inspector, 246. 
Election, how conducted, 247. 

townships- 
How established, proceedings to change boundaries, 248. 
Every township a body corporate, summons against, how served, 

249. 
Township may appear by attorney, 249. 
When townships may take stock in railroad companies, railroad 

tax how levied, 250. 
Such tax must not exceed two per cent, in two years, 250. 
When railroad company may receive tax collected, 251. 
Persons paying such tax to receive special receipts, such receipts 

assignable, 251. 
Duty of auditor when stock is not applied for, 252. 
When trustee may vote stock, 252. 

TOWNSHIP TEUSTEES— 

How and when elected, 253. 
Shall hold office two years, 253. 
Shall take oath and give bond, 253. 
Vacancy in office how filled, 253. 
Eesignation, to whom made, 253. 
Duties of trustee, 254. 

Must settle annually with road supervisors, 255. 
And report receipts and expenditures to county board, 255. 
When trustee must receive township money from county treas- 
urer, 255. 
Trustee must make itemized statement of charges, 255. 



306 INDEX. 



Township Trustees — Continued. 

Rate of compensation for time employed, 255. 

Record must be open for inspection at all times, 255. 

Penalty for failure to discharge duty, 255. 

Trustee must give notice of days he will attend to township busi- 
ness, 256. 

When and how trustee may contract debts, 256. 

Must first be authorized by county board to contract debts, 257. 

Which order shall be granted only on his petition duly verified, 
257. 

Form of such petition, 257. 

Form of notice of filing petition, 258. 

Form of affidavit of posting notices, 258. 

Duty of county commissioners, 258. 

Power of trustees to make contracts, 259. 

Trustee can not loan money of his township, 259. 

Duty of trustee as to location of school houses, 259. 

Trustee must perform the duties required of him by the super- 
visors' act, 260. 

Form of appointment of supervisor, 260. 

Duty of trustee when person elected supervisor refuses to serve, 
260. 

Form of complaint against a person elected as supervisor failing 
to serve, 261. 

Certificate of exemption from road labor, form thereof, 262. 

Duty of trustee in letting contract to keep roads in repair, 262. 

Duty of trustee when supervisor fails to report, 263. 

Form of complaint of trustees against supervisor failing to report 
or pay over money, 263. 
School law forms. 

Notice of school meeting, 264. 

Record of proceedings of school meeting. 265. 

School district director's certificate of correctness of records, 266. 

Form of appeal from director's decision to trustee, 266. 

Notice of appeal from decision of director, 267. 

Trustee's record of appeal from school director, 267. 

Decision of trustee in such appeal cases final, 268. 

Trustee's record of proceedings on petition for creation of school 
houses, 268. 

Form of report of trustee to superintendent of children enumer- 
ated and transfeired, 269. 



INDEX. 307 



Towxship Trustees — Continued. 

Trustee's report of enumeration of part of Congressional town- 
ship divided by county line, 270. 
Form of trustee's account of school revenue, 271. 
Notice of transfers for school purposes, 271. 
Basis of apportionment of school funds, 272. 
County superintendent's certificate of correctness of such report, 

273. 
Statement of transfers for school purposes, by superintendent, 

274. 
Superintendent's report of enumeration of township divided by 

a county line, 275. 
Notice to teacher of proceedings to revoke his license, 276. 
Notice to trustee of revocation of a teacher's license, 277. 
Trustee may dismiss teacher, for cause, at any time on petition 

of majority of voters of district, 277. 
Form of voter's petition for such dismissal of teacher, 277. 
Time allowed teacher to prepare his defence, 278. 
Notice to teacher of petition for his dismissal, 278. 
Form of oath of county superintendent, 278. 
County superintendent may be removed for cause, 279. 
Form of notice to superintendent of intended proceedings for 

his removal, 279. 
Form of notice of auditor of one county to auditor of another 

county in reference to funds of township divided by a 

county line, 280. 
Form of contract between trustee and teacher, 281. 
Form of teacher's report to township trustee, 282. 
See Schools. 

VIEWERS OF HIGHWAYS— 

By whom appointed, and when, 103. 

Duty of viewers, 105. 

Must take oath, 105. 

Eeport of viewers, 105, 106. 

Majority of may act, 105. 

When reviewers may be appointed, 109. 

Report of reviewers, 107. 

W'ho are qualified to act as viewers and reviewers, 110. 

Compensation of, 110. 

Reviewers may be appointed where petition is filed for change 

of highway through petitioners land, 110. 
Form of report of viewers, 115. 



